This is defendant's motion to dismiss the claim of John Velez on the grounds
that both his notice of intention and claim were untimely served. In his claim,
Velez asserts that defendant was negligent in allowing inmates to assault him on
May 5, 1999. He also asserts that defendant had custody of certain items of his
property during his stay in the infirmary after the assault and that when his
property was issued to him on June 29, 1999, he discovered missing
items. Section 10.3 of the Court of Claims Act (the "Act") provides that in a
case such as this one, either a claim or a notice of intention must be served on
the Attorney General within 90 days of accrual of the claim. If a notice of
intention is opted for, then the claim itself must be filed within two years of
accrual. Section 11.a. of the Act provides that service on the Attorney General
shall not be complete until the notice of intention or claim is received by the
Attorney General. In this case, claimant served his notice of intention on the
Attorney General on August 6, 1999 and his claim on May 10, 2001. See exhibits
A and B to the June 13, 2001 affirmation of James E. Shoemaker.
With regard to his lost property claim, which arose on June 29, 1999,
claimant's August 6, 1999 notice of intention was clearly timely served within
90 days and his May 10, 2001 claim within two years.
As to the May 5, 1999 assault, however, his August 6, 1999 notice of intention
-- served 93 days after the assault -- was not timely
Claimant notes that he prepared his
notice of intention on July 31, 1999, but that a notary was not available until
August 2, 1999, after which he requested the notice of intention be mailed. No
suggestion has been made that the two-day wait for a notary was outside
applicable DOCS practices and procedures. It also should be noted that claimant
waited until the 87th day after accrual to prepare his notice of
The service and filing requirements of the Act are jurisdictional. See, e.g.,
Byrne v State of New York, 104 AD2d 782, 480 NYS2d 225 (2d Dept 1984),
lv denied 64 NY2d 607, 488 NYS2d 1023 (1985). As Velez failed to comply
with such requirements as to the portion of his claim relating to the May 5,
1999 assault, the Court lacks jurisdiction over such portion.
Accordingly, having reviewed the parties'
, IT IS ORDERED that motion no.
M-63620 be granted in part and denied in part and that claim no. 104253 be
dismissed except as to that portion relating to the items of personal property
that claimant alleges he discovered were missing on June 29, 1999.