New York State Court of Claims

New York State Court of Claims

LEAK v. THE STATE OF NEW YORK, #2002-005-505, Claim No. 105350, Motion No. M-64528


The claim was served more that two years after the claim accrued (and more than two years after a Notice of Intention was served), was untimely (Court of Claims Act §10[3]) and therefore dismissed.

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):

Claimant's attorney:
Dana Leak,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 22, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On February 13, 2002, the following papers, numbered 1 to 4, were read on motion by Defendant for dismissal of the claim:

1, 2 Notice of Motion, Affirmation and Exhibits
  1. Claimant's letter dated January 16, 2002
  2. Filed Papers: Claim
Upon the foregoing papers, this motion is granted.

In lieu of an answer, the Defendant moves to dismiss the claim as untimely served. A Notice of Intention to file a claim was served upon the Defendant on November 23, 1999, describing an incident which allegedly took place on October 2, 1999 (Exhibit A).

On November 29, 2001, the Defendant was served with a claim (Exhibit B) with respect to the same incident. In Paragraph 2 of the claim, which was filed with the Clerk of the Court on December 14, 2001, the date of the incident may seem to read as October 21, 1999, a point which the Defendant notes. However, there appear to be some erasures and overwriting, and in any event, in Paragraph 4 of the claim, the October 2, 1999 date is repeated.

Regardless of the possible date discrepancy between October 2 and October 21 of 1999, the Defendant alleges, without any dispute or argument to the contrary, that the claim as served on November 29, 2001, is untimely, in contravention of the time constraints set forth in Court of Claims Act §10(3-a). Defendant clearly meant to refer to §10(3), which reads:
A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim. (emphasis supplied)
Here, the incident occurred in October 1999, and a Notice of Intention was served on November 23, 1999, thereby extending the date by which Claimant had to serve and file his claim to two years from the date of accrual of his claim. As readily apparent from the chronology recited above, more than two years elapsed from the accrual of the claim (irrespective of whether it accrued on October 2 or 21, 1999), and as such, it was untimely served.

Defendant has moved to dismiss in lieu of an answer (Section 11[c]). The Claimant has presented an affidavit in opposition which generally describes his hospitalization and medical care after having been burned in the incident complained of. However no dates are offered, and, Claimant totally fails to address the late service of the claim more than two years from the date of the accrual of the claim. Claimant also requests that the Court accept his Notice of Intention as his claim. That request must be denied. Such relief is governed by Court of Claims Act §10(8), and must be brought on by a notice of motion and proper supporting papers, and served upon the Defendant and filed with the Clerk. This request is not properly before me, and is thus rejected at this time.

Accordingly, the motion is granted and the claim is dismissed.

February 22, 2002
Rochester, New York

Judge of the Court of Claims