New York State Court of Claims

New York State Court of Claims

MARATHON v. THE STATE OF NEW YORK, #2002-015-248, Claim No. 105424, Motion Nos. M-64656, M-64588


Court determined that claim seeking to recover damages for loss of personal property stemming from actions of City of Albany Police Officer failed to state cause of action against State. Claim dimissed.

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):
M-64656, M-64588
Cross-motion number(s):

Claimant's attorney:
Alexander Marathon, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 6, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The State's motion to dismiss the instant claim for lack of jurisdiction (M-64656) arising from the claimant's failure to comply with the time limitations set forth in section 10 of the Court of Claims Act and, further, on the ground that the claim fails to state a cause of action is granted. Claimant's motion for poor person status (M-64588) is denied as moot. This pro se claim, filed with the Court on January 4, 2002, is presented in two separate documents, one sworn to on November 29, 2001 and entitled "Claim No. ______" and the other undated and entitled "Claim for Damages". They are accompanied by a verification sworn to on November 29, 2001. Claimant also filed an affidavit alleging service of certain unspecified "papers" upon the Attorney General's office by certified mail, return receipt requested, on November 29, 2001. Reading both documents together claimant appears to be seeking damages from the State for the loss of personal property resulting from the alleged unlawful activity of a City of Albany Police Officer identified as Kevin Raducci and for an alleged battery of claimant perpetrated by that same officer on August 24, 2000 following claimant's arrest for a parole violation. No specific accrual date is specified regarding the loss of claimant's personal property but it is alleged that Officer Raducci entered claimant's apartment and removed property on four unspecified occasions following claimant's August 24, 2000 arrest.

Defendant's motion to dismiss the claim is based upon its untimely service pursuant to section 10 of the Court of Claims Act and for failure to state a cause of action upon which liability against the State can be predicated.

It is well established that on a motion pursuant to CPLR 3211 (a) (7) the Court's role is to examine the pleading to determine whether the claimant has a cause of action rather than whether a cause of action has been stated (Quail Ridge Assocs. v Chemical Bank, 162 AD2d 917, 918, lv dismissed 76 NY2d 936). In doing so the Court should construe the pleading liberally, accept the facts alleged as true (Carp v Marcus, 112 AD2d 546) and accord claimant the benefit of all favorable inferences which may be drawn from the pleading (see Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 318).

As the Court of Appeals in Guggenheimer v Gingzburg, 43 NY2d 268, 275 observed: "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail (see, Foley v D'Agostino, 21 AD2d 60, 64-65; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3211:24 , p 31; 4 Weinstein-Korn-Miller, NY Civ Prac., par 3211: 36)."

Even applying these liberal standards to the claim the Court concludes that nowhere within the four corners of either document filed as the claim has claimant satisfactorily alleged a basis for liability against the State. Neither his allegations related to the loss of his property nor those regarding the alleged battery implicate any State officer, agent or employee. It has long been held that the State is not responsible for the allegedly tortious actions of a member of a local police department (see, Whitmore v State of New York, 55 AD2d 745). As all of the conduct giving rise to this claim is alleged to have been committed by a City of Albany police officer (Officer Raducci) rather than by an officer, agent or employee of the State of New York liability on the part of the State cannot be found and the claim therefore fails to state a cause of action against the defendant.

Additionally, Court of Claims Act section 10 (3) relating to negligent conduct and section 10 (3-b) relating to intentional torts both require service of either a notice of intention to file a claim or a claim upon the Attorney General within 90 days of the claim's accrual. The instant claim alleges that it accrued on August 24, 2000. On the motion defense counsel alleges that service of the claim upon the Attorney General by certified mail, return receipt requested, did not occur until December 27, 2001[1], more than one year and ninety days after the claim's alleged accrual. Defendant's assertion of untimely service was not addressed by claimant and the Attorney General's allegations in that regard stand unrefuted.

Nor does it appear that claimant timely served a notice of intention to file a claim upon the Attorney General pursuant to either § 10 (3) or § 10 (3-b) of the Court of Claims Act. Included as part of the motion papers is a copy of a notice of intention to file a claim concerning the events allegedly occurring on or about August 24, 2000 and involving Officer Raducci. The notice of intention is undated but bears a date stamp indicating its receipt by the Attorney General on December 27, 2001. Having failed to timely serve a notice of intention the claim must be found to be untimely.

The Court of Appeals has consistently found that "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724; Lichtenstein v State of New York, 93 NY2d 911). As a result it is well established that the time limitations contained in section 10 of the Court of Claims Act are jurisdictional in nature and dismissal is appropriate for failure to comply therewith (Baker v State of New York, 186 AD2d 329).

Accordingly, for the reasons set forth above the defendant's motion is granted and the claim is dismissed. The dismissal renders moot claimant's motion (M-64588) for poor person status and it is hereby denied for that reason.

May 6, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

Motion No. M-64588
  1. Notice of motion dated November 29, 2001 with exhibit;
  2. Letter from Alexander Michael Marathon dated February 10, 2002 with exhibit.

Motion No. M-64656

  1. Notice of motion dated January 29, 2002;
  2. Affirmation of Michael W. Friedman dated January 29, 2002 with exhibits;

[1]Court of Claims Act § 11 (a) (i) provides that service upon the Attorney General by certified mail, return receipt requested, is not complete until it is received.