New York State Court of Claims

New York State Court of Claims

FITZPATRICK v. STATE OF NEW YORK, #2001-018-086, Claim No. 103293, Motion No. M-62756


Synopsis



Case Information

UID:
2001-018-086
Claimant(s):
KEVIN FITZPATRICK
Claimant short name:
FITZPATRICK
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103293
Motion number(s):
M-62756
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
KEVIN FITZPATRICKPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 21, 2001
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings this motion seeking an order dismissing the claim on the ground that the


Court does not have personal or subject-matter jurisdiction. The Court has considered the


following documents in deciding the motion:


Notice of Motion...................................................................................1


Affirmation of Joel L. Marmelstein, Assistant Attorney General

in Support with all Exhibits attached thereto............................2


"Reply to Affirmation and Reply to Notice of Motion to Dismiss

Claim" of Kevin Fitzpatrick, with exhibits attached thereto...3


"Notice of Motion in Opposition to Motion to Dismiss Claim"[1]

with exhibits attached thereto....................................................4


Reply Affirmation of Joel L. Marmelstein, Assistant Attorney General

in Support with all Exhibits attached thereto.............................5


"Reply to Defendant's Reply Affirmation"............................................6 Defendant seeks dismissal of the claim on the ground that it was not timely served in accordance with Court of Claims Act Section 10(3-b) and CPLR 215(3). Defendant properly preserved this objection clearly and with particularity as an affirmative defense in its answer in accordance with Court of Claims Act §11(c).

The claim seeks damages for assault and battery. In the claim, Claimant asserts that on October 29, 1999, the State, through its employees at the Central New York Psychiatric Center, wrapped a canvas blanket around him, pulled it tightly around his neck, and choked him. While Claimant tried to remove the blanket from around his neck so that he could breathe, the employees allegedly struck him about the body and slammed his head into the floor. Claimant was then allegedly strapped by the wrists, ankles and chest to a restraint bed, verbally taunted and threatened, and punched in the right eye. While still restrained, Claimant was allegedly unjustifiably injected with Haldol, Ativan, and Benadryl.

Claimant served a notice of intention upon the Attorney General on January 13, 2000. The claim was filed on October 27, 2000, and received by the Attorney General on October 30, 2000, by certified mail, return receipt requested. Defendant argues that in order to be timely the claim should have been received by the Attorney General on or before October 28, 2000. Since it was not received by that date, the claim is untimely and must be dismissed.

The claim accrued on October 29, 1999. Since a timely notice of intention was served upon the Attorney General, pursuant to Court of Claims Act §10 and CPLR 215(3), the claim had to be filed and served within one year of the accrual date; which is October 29, 2000. (General Construction Law Section 20; Metropolitan Life Ins. Co. v Schmidt, 299 NY 428, 431) However, since October 29, 2000, fell on a Sunday, Claimant had until Monday, October 30, 2000, to file and serve the claim. As a result, Claimant's claim received on October 30, 2000, by the Attorney General was timely.

Defendant should have more carefully reviewed the calendar and the General Construction Law prior to bringing this motion. Even if the Court accepted Defendant's position that the claim had to be served by October 28, 2000, since the date fell on a Saturday, Claimant would have still had until October 30, 2000 to serve the claim. (General Construction Law §25-a(1); Abrams v Design Works Inc., 198 AD2d 252; Matter of Bogle v Mann, 167 AD2d 721)

Defendant's motion is DENIED.

May 21, 2001
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims




[1]This was treated as a responding document to the Defendant's Motion to Dismiss since it did not request any affirmative relief other than denying Defendant's Motion.