New York State Court of Claims

New York State Court of Claims

MILLER v. THE STATE OF NEW YORK, #2003-009-45, Claim No. 107774, Motion Nos. M-66953, CM-67052


Defendant's motion to dismiss the claim based upon untimely service was granted. Claimant's cross-motion seeking an order to compel the production of certain documents was denied as moot.

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:
Defendant's attorney:
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
October 20, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought a motion (Motion No. M-66953) seeking an order dismissing the claim based upon untimely service. With regard to the same claim, claimant has submitted an application (Cross-Motion No. CM-67052) seeking an order compelling defendant to produce certain records from Marcy Correctional Facility.

The following papers were considered by the Court in connection with these motions:
Notice of Motion to Dismiss Claim (M-66953), Affirmation in Support, with Exhibits.. 1,2

Correspondence dated June 26, 2003 from Claimant 3

"Termination/Transfer Progress Note" dated 4/3/03, submitted by Claimant 4

Notice of Motion (CM-67052)[1] 5

Affirmation in Opposition (CM-67052) 6

In his claim, claimant seeks to recover damages based upon alleged improper or inadequate medical treatment arising from an incident which occurred on February 18, 2003 while claimant was incarcerated at Marcy Correctional Facility.

Pursuant to Court of Claims Act § 10(3), a claim alleging acts of negligence against the State must be served on the Attorney General and filed with the Clerk of the Court of Claims within 90 days of accrual, 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 served upon the Attorney General within the 90 days following accrual, the claim must then be served and filed within two years from the date of accrual. In this claim, claimant alleges that his claim accrued at Marcy Correctional Facility on February 18, 2003. Service of the claim upon the Attorney General was made on June 2, 2003, as evidenced by the date which is stamped on the copy of the claim served upon the Attorney General (see Exhibits "A" and "B" to Items 1,2). There is no indication in the papers before the Court that a notice of intention to file a claim was ever served upon the Attorney General with regard to the allegations made in this claim. It is therefore apparent, uncontested by claimant, that service of the claim was not completed within the 90 days following accrual of the claim as required by § 10(3). 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). As a result, this Court does not have the authority to cure or overlook defects in the time and/or manner of service and filing. Accordingly, this claim must be dismissed.

In his response to this motion (see Item 3), and as a defense for his failure to timely serve his claim, claimant has argued that he had a reasonable excuse (medical incapacity and limited ability to confer with counsel) for failing to timely serve his claim; that the State would not be prejudiced by his failure to timely serve his claim; and that he had exhausted all available remedies. These factors, while possibly relevant to an application for permission to serve and file a late claim pursuant to Court of Claims Act § 10(6), are not legally sufficient defenses, however, to a motion brought to dismiss a claim on jurisdictional grounds.

Court of Claims Act, § 10(6) requires that any application for permission to serve and file a late claim "shall be made upon motion returnable at any regular or special session of the court". Any such motion therefore must be served and filed in accordance with the Uniform Rules for the Court of Claims, as well as appropriate provisions of the CPLR, upon notice to the Attorney General. In this matter, claimant, by asserting late claim "factors" as a defense to defendant's motion to dismiss, has not requested late claim relief in the proper manner, which would afford the State an opportunity to respond. Accordingly, this Court finds that to the extent claimant was requesting consideration of late claim relief in his responsive papers, such request is not properly before the Court and cannot be considered at this time.

In view of the fact that this claim must be dismissed upon jurisdictional grounds, claimant's cross-motion seeking production of certain records has been rendered moot.

Accordingly, it is

ORDERED, that Motion No. M-66953 is hereby GRANTED; and it is further

ORDERED, that Cross-Motion No. CM-67052 is hereby DENIED; and it is further

ORDERED, that Claim No. 107774 is hereby DISMISSED.

October 20, 2003
Syracuse, New York

Judge of the Court of Claims

[1] With regard to Cross-Motion No. CM-67052, the Court received only the above referenced notice of motion, together with an affidavit of service, but without any supporting affidavit.