New York State Court of Claims

New York State Court of Claims

VELEZ v. THE STATE OF NEW YORK, #2001-016-208, Claim No. 104253, Motion No. M-63620


Motion to dismiss pro se inmate's claim was granted as to assault portion but denied as to lost property portion.

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:
John Velez
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: James E. Shoemaker, AAG
Third-party defendant's attorney:

Signature date:
December 6, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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 served.[1] 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 intention.

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' submissions[2], 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.

December 6, 2001
New York, New York

Judge of the Court of Claims

  1. [1]As such, he may not take advantage of the two-year period found in §10.3 for service of his claim. In any event, his claim, served on May 10, 2001, was not served within two years of the May 5, 1999 assault.
  2. [2]Along with the claim, the following were reviewed: defendant's notice of motion with affirmation in support and exhibits A and B; and claimant's opposition papers with exhibits A-D.