1. Notice of Motion and Supporting Affirmation of Eileen E. Bryant, AAG,
filed October 3, 2000, with annexed Exhibits A-C ("Bryant affirmation")
2. Affidavit in Opposition: none received
3. Filed papers: Claim, filed March 19, 1999; Answer, filed April 27,
This claim arose on March 10, 1997 at Coxsackie Correctional Facility when, it
is alleged, claimant arrived at that facility, was issued his property, and
discovered that a cassette player and ten packs of cigarettes were missing.
Claimant subsequently filed an institutional claim but, he states, received no
response. He asserts that he filed an "application of intent to file" (notice
of intention to file a claim) on April 21, 1997.
In its answer, the State of New York raised, among others, the following
The claim was not filed within 90 days after it accrued, as required by Court of
Claims Act §§ 10(3), 10(3-b) and 11, and the Court lacks subject
matter jurisdiction of the claim.
Neither the notice of intention nor the claim was served within 90 days after
the claim accrued, as required by Court of Claims Act §§ 10(3),
10(3-b) and 11, and the Court lacks subject matter jurisdiction of the claim and
personal jurisdiction over the State.
These statements are sufficiently particular to provide notice of the defense of
untimeliness in that they include (1) reference to the time period within which
the filing (and/or service) should have occurred and (2) 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,
Defendant now moves to dismiss this claim on the ground of untimeliness. Both
a notice of intention and the claim was received by the office of the Attorney
General on March 19, 1999 (Exh A, Bryant affirmation) and, as noted above, a
copy of the claim was filed with the Court on the same date. A review of the
Court's file does not reveal any notice of intention, or any other submission,
prior to March 1999. The ninetieth day after March 10, 1997 was June 8, 1997,
and thus the claim was filed and served in an untimely manner. The time and
manner of service requirements contained in the Court of Claims Act are
jurisdictional in nature and must be strictly construed (Selkirk v State of
New York, 249 AD2d 818), and consequently the claim must be dismissed.
Claimant's only recourse is to seek permission to file an untimely claim
pursuant to Court of Claims Act §10(6).