1. Notice of Motion and Supporting Affidavit of Dennis M. Acton, AAG, filed
Oct. 12, 2000, with annexed Exhibits A & B ("Acton affidavit")
2. Affidavit in Opposition: none received
3. Filed papers: Claim, filed May 25, 1999; Answer, filed June 30,
This claim seeks compensation for the physical injuries suffered by claimant on
January 27, 1998 and on May 29, 1998 when, on both occasions, he was allegedly
attacked by another inmate of Greene Correctional Facility. The claim in this
action was filed on May 25, 1999 and it contains the allegation that a timely
notice of intention was served on defendant State of New York on August 27,
In its answer, the State set forth, as its fifth affirmative defense, the
The claim lacks jurisdiction since no notice of intention or claim was served
within 90 days of the accrual of the cause of action (5/29/98) as required by
Section 10(3) and 11(a) of the Court of Claims Act.
This statement satisfies the "particularity" requirement of section 11(c) of the
Court of Claims Act in that it includes reference to the time period within
which the filing (and/or service) should have occurred and the statutory
authority for such requirement (see, Smith v State of New York,
Claim No. 85799, Motion No. M-48029, filed July 20, 1993, Benza, J.; Kanaval
v State of New York, Claim No. 86053, Motion No. M-47990, filed July 20,
1993, Benza, J.).
In support of the motion, counsel for defendant has submitted a copy of the
claim that was served on the Attorney General on May 24, 1999 (Acton affidavit,
Exh A). The supporting affidavit contains no reference to claimant's allegation
that a notice of intention was served in August 1998, and it would have been the
better practice to address that directly. Claimant, however, was served with
the instant motion and has chosen to make no response, a silence the Court can
only construe as admission that no document was timely filed.
Defendant's motion is granted and Claim No. 100435 is dismissed.