New York State Court of Claims

New York State Court of Claims

BANKS v. THE STATE OF NEW YORK, #2002-011-548, Claim No. 101384, Motion No. M-64879


Synopsis


Defendant's motion to dismiss the claim on the basis that it was not served within ninety days of accrual as required by CCA §10 is granted.

Case Information

UID:
2002-011-548
Claimant(s):
JEFFREY BANKS
Claimant short name:
BANKS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101384
Motion number(s):
M-64879
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Jeffrey Banks, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael W. Friedman, Esq.,Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 4, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Defendant has moved to dismiss the claim on the basis that it was not served within ninety

days of accrual as required by Court of Claims Act §10. The claim is based upon allegations that claimant was assaulted by correction officers and deprived of his rights in a subsequent disciplinary hearing that was based on a frivolous misbehavior report. The latest date of wrongdoing alleged in the claim is July 26, 1999.

Under Court of Claims Act §10 a claim based upon an intentional or unintentional tort, such as is alleged here, must be filed within ninety days of accrual unless a notice of intention is served within that time and then the claim may be filed within one or two years of accrual.

A notice of intention was served on defendant on August 9, 1999 but service was accomplished by regular mail and alleged only the assault. Inasmuch as the notice of intention was not served in a manner required by Court of Claims Act section 11, it is ineffective. Therefore, claimant was required to serve the claim within ninety days of accrual which, based on the allegations in the claim, was no later than July 26, 1999. The claim though properly served was not received until November 9, 1999. As this date is more than ninety days after the accrual of any claim alleged, the claim is untimely. Accordingly, the motion is granted and the claim is dismissed.


June 4, 2002
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims


Papers Submitted:

1. Notice of Motion to Dismiss dated March 19, 2002
2. Affirmation in Support of Michael W. Friedman, Esq. dated March 19, 2002 with exhibits annexed
3. Unsworn Affidavit in Response of Jeffrey Banks dated March 30, 2002 with exhibits annexed