New York State Court of Claims

New York State Court of Claims

MANCE v. THE STATE OF NEW YORK, #2003-009-12, Claim No. 106998, Motion No. M-66202


Defendant's motion for an order dismissing the claim for untimely service was denied, as the Court found that the notice of intention was timely served.

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):
Cross-motion number(s):

Claimant's attorney:
BY: Robert Savitsky, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Timothy P. Mulvey, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
March 6, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this motion seeking an order dismissing this claim for untimely service.

The following papers were considered by the Court in connection with this motion:
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.

March 6, 2003
Syracuse, New York

Judge of the Court of Claims