Notice of Motion, Affirmation, with Exhibits 1,2
In his filed claim, claimant alleges negligence against the State arising from
an incident which occurred on February 18, 2001, while claimant was incarcerated
at Auburn Correctional Facility. On that date, claimant alleges that his left
hand was caught in a cell door as it was closed by a correction officer, causing
injuries to claimant's middle and ring fingers of his left hand.
Court of Claims Act, § 10(3) requires that claims alleging negligence
against the State must be served upon the Attorney General and filed with the
Court within 90 days after the accrual of the claim, unless a notice of
intention to file a claim is served upon the Attorney General within such 90 day
period. If a notice of intention is timely served, a claim must then be filed
with the Court and served upon the Attorney General within two years of accrual
of the claim.
The service and filing requirements of the Court of Claims Act are
jurisdictional prerequisites to the institution and maintenance of a claim
against the State and therefore they must be strictly construed (Finnerty v
New York State Thruway Authority, 75 NY2d 721; Byrne v State of New
York, 104 AD2d 782, lv denied 64 NY2d 607).
With regard to this claim, and as mentioned above, claimant alleges that he was
injured on February 18, 2001. As set forth in defendant's moving papers, a
notice of intention to file a claim, served by claimant who at the time was
proceeding pro se, was received by the Attorney General on May 21, 2001.
A claim was subsequently served on the Attorney General on November 27, 2002,
and was filed with the Clerk of the Court on the same date.
Defendant now moves to dismiss the claim, on the basis that the notice of
intention to file a claim was not served upon the Attorney General within 90
days of the date that claimant's cause of action accrued.
Since the incident which forms the basis of this claim occurred on February 18,
2001, claimant had 90 days from such date or until May 19, 2001, to serve his
notice of intention to file a claim. The notice of intention, however, was not
received by the Attorney General until May 21, 2001. It is well
settled that it is the date of receipt, and not the date of mailing, which
determines the issue of whether a claim has been timely filed or served
(Muscat v State of New York, 103 Misc 2d 589).
In this case, however, the 90th day following the accrual of the cause of
action, i.e., May 19, 2001, fell on a Saturday. General Construction Law,
§ 25-a(1) provides that "[w]hen any period of time, computed from a
certain day, within which ... an act is authorized or required to be done, ends
on a Saturday, Sunday or a public holiday, such act may be done on the next
succeeding business day...". Since May 19, 2001 was a Saturday, claimant
therefore had until Monday, May 21, 2001 to serve his notice of intention. His
notice of intention was admittedly received by the Attorney General on such
date, and therefore claimant's service of his notice of intention was completed
in a timely manner. Since his claim was then served and filed within two years
from the date of accrual, it is properly before the Court.
Accordingly, it is
ORDERED, that Motion No. M-66202 is hereby DENIED.