New York State Court of Claims

New York State Court of Claims

MALLOY v. THE STATE OF NEW YORK, #2001-015-209, Claim No. 104806, Motion No. M-64083


Defamation claim brought by inmate based upon DOCS nurse's entry on ambulatory health record referring to claimant as "nuts" was dismissed as untimely since claim was not served on Attorney General within one year of accrual. Additionally, Court of Claims does not have jurisdiction over claims alleging violation of United States Constitution.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Anthony Malloy, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
December 13, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's pre-answer motion to dismiss the claim for lack of jurisdiction is granted. The claimant opposed the motion by notice of motion dated September 25, 2001 and an unsworn statement bearing the same date.

The claim filed with the Court on August 27, 2001 and served upon the Attorney General's Albany Office by certified mail, return receipt requested on August 16, 2001 alleges that on November 30, 1999 a Department of Correctional Services employee identified as Nurse Bonomo verbally assaulted the claimant by writing the word "NUTS" on an ambulatory health record dated November 30, 1999. He alleges further in the claim that such remark constitutes a racial slur and a violation of his civil rights under the 8th Amendment to the United States Constitution. The claim also seeks to recover damages for injury to or loss of personal property and alleges that the claim was filed within 120 days of the exhaustion of claimant's administrative remedies. Claimant seeks $30,000,000.00 in damages.

The defendant has moved for dismissal of the claim on the grounds that the Court lacks jurisdiction since the claim was untimely filed and that a violation of the United States Constitution is not justiciable in the New York State Court of Claims. The Court addresses first the issue of the claim's alleged untimeliness. For purposes of this motion the Court will assume without deciding that the claim states a cause of action for intentional tort, i.e., defamation.

The requirements for timely filing and service of a claim or service of a notice of intention to file a claim are jurisdictional prerequisites and it is well established that "[t]he Court of Claims does not obtain jurisdiction to adjudicate a claim unless the claimant timely files a claim or a notice of intention to file a claim" (Selkirk v State of New York, 249 AD2d 818, 819 quoting Mallory v State of New York, 196 AD2d 925). Pursuant to Court of Claims Act § 10 (3-b) a claim alleging an intentional tort must be "filed and served upon the attorney general within ninety days after the accrual of such claim." The instant claim, which was filed on August 27, 2001 and served upon the Attorney General's office on August 16, 2001, [1] is clearly untimely since the claim itself alleges an accrual date of November 30, 1999, more than one year and nine months prior to the service and filing of the instant claim. It does not appear that claimant timely served a notice of intention to file a claim and claimant is therefore not entitled to the additional time to serve and file a claim which would otherwise have been available under the concluding phrase of section 10 (3-b) of the Court of Claims Act. Under the circumstances present here the claim was untimely served and filed and must, therefore, be dismissed for lack of jurisdiction (Selkirk v State of New York, supra).

It is equally well established that claims alleging violations of an individual's rights under the United States Constitution are not subject to adjudication in the Court of Claims (Brown v State of New York, 89 NY2d 172, 184; Zulu v State of New York, ____ Misc 2d ____, 2001 WL 880833 (NY Ct Cl) Ferrer v State of New York, 172 Misc 2d 1, 5). Nor is the State a "person" amenable to suit under 42 USC § 1983 (Ferrick v State of New York, 198 AD2d 822; Thomas, Matter of, v New York Temporary State Comm. on Regulation of Lobbying, 83 AD2d 723, affd, 56 NY2d 656). Accordingly, claimant's attempt to predicate liability against the State upon an alleged violation of the 8th Amendment to the United States Constitution is unavailing.

The instant claim is, accordingly, dismissed.

December 13, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated September 20, 2001;
  2. Affirmation of G. Lawrence Dillon dated September 20, 2001 with exhibits;
  3. [Notice of] Motion dated September 25, 2001;
  4. Unsworn statement of Anthony Malloy dated September 25, 2001 with exhibit.

[1]Service on the Attorney General is effective only upon its receipt (see, Court of Claims Act § 11 (a) (i).