New York State Court of Claims

New York State Court of Claims

THOMAS v. THE STATE OF NEW YORK, #2002-011-575, Claim No. 105794, Motion No. M-65019


Synopsis


Defendant's motion 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 is granted.

Case Information

UID:
2002-011-575
Claimant(s):
RICHIE THOMAS
Claimant short name:
THOMAS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105794
Motion number(s):
M-65019
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Richie Thomas, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, Esq.,Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 26, 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. The date of accrual as alleged in the claim is October 31, 2001. Under Court of Claims Act §10 a claim based upon an intentional 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 year of accrual.

Defendant alleges that a notice of intention was received on December 10, 2001 but service was accomplished by regular mail. Claimant, however, maintains that the notice of intention was served by certified mail return receipt requested and was received on February 4, 2002. Even assuming that the allegation of service offered by Claimant is correct, February 4, 2002 was more than 90 days after the claim accrued and therefore, the notice was ineffective in extending the time for presenting the claim. Inasmuch as the notice of intention is without effect and because the claim was not served within 90 days of accrual, the claim is untimely. Accordingly, the motion is granted and the claim is dismissed.

August 26, 2002
Saratoga Springs, New York

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


Papers Submitted:

1. Notice of Motion dated April 8, 2002
2. Affidavit in Support of Michael C. Rizzo, Esq. sworn to the 8th day of April, 2002 with exhibits annexed
3. Responding Motion and Affidavit of Richie Thomas sworn to the 23rd day of April, 2002 with exhibits annexed