New York State Court of Claims

New York State Court of Claims

DAVIDSON v. THE STATE OF NEW YORK, #2002-031-048, Claim No. 99947, Motion No. M-65544


Synopsis


Neither a claim nor a notice of intention to file a claim were filed within 90 days of accrual of action. Claim is untimely and must be dismissed.

Case Information

UID:
2002-031-048
Claimant(s):
RONALD DAVIDSON
Claimant short name:
DAVIDSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99947
Motion number(s):
M-65544
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
RONALD DAVIDSON, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: WILLIAM D. LONERGAN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 7, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 through 3, were read on motion by Defendant for dismissal of the claim:
1. Defendant's Notice of Motion, filed July 24, 2002;
2. Affidavit of William D. Lonergan, Esq., sworn to July 23, 2002, with attached exhibits;
3. Correspondence from Claimant, dated September 17, 2002. Claimant commenced this action seeking to recover $34.38 for the loss of a cheesecake that he alleges Defendant improperly refused to let him keep while incarcerated at Wende Correctional Facility. According to Claimant, his claim accrued, at the latest, on December 5, 1998.

Defendant filed motion M-65544 seeking dismissal of the claim based upon Claimant's failure to serve either his claim or a notice of intention to file a claim within ninety (90) days of accrual of the claim as required by Court of Claims Act §§ 10 and 11. The State preserved this issue for review by raising, with particularity, the Claimant's failure to comply with the Court of Claims Act as affirmative defenses in its Verified Answer. Defendant has included as exhibit A to the affidavit of William D. Lonergan, Esq., a copy of the claim served upon the Attorney General's Office, as well as a copy of the envelope in which it was served. These documents indicate that the claim was received at the Attorney General's Office on March 8, 1999, more than 90 days after accrual of this action.

Claimant has not responded to Defendant's motion, which was returnable on August 28, 2002, and which required responding papers to be served on or before August 23, 2002. Claimant has, however, submitted a letter dated September 17, 2002, in which he requests that the motion be adjourned based upon his "medical problems." Claimant makes no showing of what these alleged "medical problems" might be and has submitted no documentation which would demonstrate that he is prevented from responding to Defendant's motion due to a "medical problem." I find that this letter, submitted almost one month after Claimant's responding papers were due, fails to provide any legitimate reason to delay a decision on the merits of Defendant's motion.

Under Court of Claims Act § 10(3), a claim based upon injury to property, such as is alleged here, must be filed within ninety (90) days. According to Court of Claims Act § 11, service upon the Attorney General is complete when "received in the office of the attorney general." It is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in Court of Claims Act §§ 10 and 11 are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). As such, the Claim must be dismissed as untimely.

Based upon the foregoing it is:

ORDERED, that Defendant's motion for dismissal of the claim is granted. The Clerk is directed to close the file.

October 7, 2002
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims