New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2001-028-0501, Claim No. 100435, Motion No. M-62527


Synopsis


Inmate claim that was filed more than a year after the incident giving rise to it is dismissed as untimely, despite allegation in the claim that a notice of intention was timely filed.

Case Information

UID:
2001-028-0501
Claimant(s):
KARO BROWN
Claimant short name:
BROWN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100435
Motion number(s):
M-62527
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
KARO BROWN, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Dennis M. Acton, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 4, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on defendant's motion for an order of dismissal.

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, 1999

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, 1998.

In its answer, the State set forth, as its fifth affirmative defense, the following:

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.


January 4, 2001
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims