New York State Court of Claims

New York State Court of Claims

BROWN v. THE NEW YORK STATE BOARD OF PAROLE, #2002-028-071, Claim No. 106427, Motion Nos. M-65765, M-65827


State's motion to dismiss is granted as Claimant failed to serve his Claim within two years of accrual.

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-65765, M-65827
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Belinda A. Wagner Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 20, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant's motion to dismiss the Claim pursuant to CPLR § 3211 (a) (2), (7) and (8) and on Claimant's motion for a stay of proceedings:

1) Notice of Motion and supporting affirmation of Assistant Attorney General Belinda A. Wagner ( Wagner affirmation) filed September 9, 2002 with annexed Exhibit A;

2) "Notice of Motion" and "Affidavit/Statement of Facts" of Manzy Brown, III, (Brown Affidavit) filed September 11, 2002 with annexed Exhibit "Appendix (2) Exhibit J"[1]

3) Notice of Motion for "Stay of Proceeding" and "Reply Affidavit/Statement of Facts" of Manzy Brown, III, (Brown Reply) filed September 24, 2002 with annexed Exhibit 1 and Exhibits A- I;

4) Letter from Claimant dated September 25, 2002;

5) Reply Affirmation of Assistant Attorney General Belinda A. Wagner (Wagner Reply) filed September 30, 2002

Filed Papers: Claim filed July 29, 2002.

Defendant has timely moved to dismiss the Claim by pre-answer motion asserting that the Claim is untimely filed, thereby depriving the Court of personal and subject matter jurisdiction. Claimant has opposed the Defendant's application and seeks a "stay of proceeding" which the Court has, upon review of that submission, treated for all purposes as opposition papers to the motion to dismiss.

In the underlying Claim, Claimant has asserted three separate causes of action seeking damages flowing from his denial of parole in July 2000. Claimant alleges that as a consequence of ministerial neglect incorrect information was provided to the Parole Board (Claim ¶ 1), he was denied a fair hearing (Claim ¶ 2) and while the incorrect information remains in his file he has been denied the minutes of the July 12, 2000 parole hearing (Claim ¶ 3)[2].

It is well established that failure to timely serve the Attorney General in strict compliance with Court of Claims Act § 10 (3) gives rise to a jurisdictional defect (see, Finnerty v New York State Thruway Auth., 75 NY2d 721, 723; Dreger v New York State Thruway Auth., 177 AD2d 762, 763, affd 81 NY2d 721; Suarez v State of New York, 193 AD2d 1037, 1038)

Court of Claims Act §10(3), applicable to the instant claim, provides:
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)
Defendant concedes (Wagner Affirmation, ¶ 7) that Claimant timely served a Notice of Intention, sworn to August 28, 2000, upon the Attorney General. The Notice of Intention fixed the date of accrual of the claim as July 12, 2000, the date of the parole hearing. As such, Claimant extended the time in which to file his Claim by the two years from the date of accrual.

Thereafter, Claimant served and filed his Claim on July 29, 2002. Defendant argues that service of the Claim on July 29, 2002 is untimely, accepting Claimant's assertion that the Claim accrued on July 12, 2000 (Wagner Affirmation, ¶ 7).

As is readily apparent from the foregoing chronology the claim was served more than two years from the stated date of accrual and as such is untimely. Claimant does not suggest a different accrual date in any of his extensively researched submissions, and the Court, upon searching the record could find no date later than July 26, 2000 - the date Claimant appears to have received notice of the unfavorable parole decision (see, Chartrand v State of New York, 46 AD2d 942 [accrues when the extent of the damage can be ascertained][3]) - for accrual of this Claim, and even that accrual date leaves service on July 29, 2002 untimely.

Accordingly, Defendant's motion is granted and Claim number 106427 shall be and hereby is dismissed.

December 20, 2002
Albany, New York

Judge of the Court of Claims

[1] Although captioned a "motion" Claimant was seeking to correct an omission from Exhibit J of the Claim and the Court treated same as a responding paper. By letter dated September 16, 2002, the Attorney General stipulated to include the at issue pages as part of the Exhibit.
[2] Claimant, by casting his Claim as one for "ministerial neglect", seeks to avoid dismissal of the Claim as barred by sovereign immunity (see, Semkus v State of New York, 272 AD2d 74 lv denied 95 NY2d 761[determinations pertaining to parole, even if subsequently determined to be in error, are strictly sovereign and quasi-judicial in nature]; see also Lublin v State of New York, 135 Misc 2d 419, 420, affd 135 AD2d 1155, lv denied 71 NY2d 802 [collateral review may not be sought under the guise of a claim for money damages] ), a question the Court does not reach.
[3] It appears Claimant was aware of the information he asserts is incorrect as early as October and November, 1999 (Brown Reply, Exhibits D and F).