New York State Court of Claims

New York State Court of Claims

MITCHELL v. THE STATE OF NEW YORK, #2001-016-201, Claim No. 101921, Motion No. M-63923


Motion to dismiss claim for lack of service of claim was granted.

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):

Alan C. Marin
Claimant's attorney:
Mark Mitchell
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Carol A. Cocchiola, AAG
Third-party defendant's attorney:

Signature date:
October 29, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is defendant's motion to dismiss the claim of Mark Mitchell on the grounds that the claim was never served on the Attorney General. In the underlying claim, it is alleged that "prison officials are guilty of negligence, the failure to provide proper protection for me," apparently in connection with an assault on claimant by other inmates at Sullivan Correctional Facility. Claimant asserts that he was assaulted on August 1, 1997, was in a coma for nine days thereafter. He filed this claim on February 7, 2000, but concedes that he failed to serve the Attorney General with the claim. On that same day, he served a "Notice of Intention to File Claim" and "Motion for Permission to File a Late Claim" on the Attorney General, but did not file the motion with the Clerk of the Court.

Section 10.3 of the Court of Claims Act provides that a claim such as this one must filed with the Clerk of the Court and served on the Attorney General within 90 days of accrual of the claim. It is undisputed that Mitchell failed to so serve and file his claim within this time frame.

"It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and accordingly, must be strictly construed . . ." Byrne v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted). In short, this Court lacks jurisdiction over Mitchell's claim by virtue of his failure to serve it on the Attorney General.

Section 10.6 of the Court of Claims Act provides that under certain circumstances, the Court may permit the late filing of a claim, however, such relief may not be granted if the relevant statute of limitations has run. In this case, the statute of limitations ran on August 1, 2000, three years after the assault on claimant. See §214 of the New York Civil Practice Law and Rules. Thus, even if claimant were to make a late claim motion at this time -- no such motion is pending at this time -- the Court would not be permitted to grant such motion. Claimant argues generally that the statute of limitations should not be applied because of his condition following the incident, however, no authority can be found therefor.

In view of the foregoing, having reviewed the parties' submissions,[1] IT IS ORDERED that motion no. M-63923 be granted and claim no. 101921 be dismissed.

October 29, 2001
New York, New York

Judge of the Court of Claims

  1. [1]Along with the claim, the Court reviewed: defendant's notice of motion with affirmation and affidavit in support and Exhibits A-B; claimant's "Affidavit in Response to Defendant's Motion to Dismiss," and defendant's reply affirmation.