New York State Court of Claims

New York State Court of Claims

KIDD v. THE STATE OF NEW YORK, #2003-013-003, Claim No. 106483, Motion No. M-65775


Motion to dismiss is granted on the ground that actions based on 42 USC §1983 may not be maintained against the State, and on the ground that service of a notice of intention on the ninety-first day after a claim's accrual is untimely. Claimant's informal request for late claim relief, contained in opposition papers and not made by motion or cross-motion, is insufficient.

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 of the State of New York
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 15, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


On November 13, 2002, the following papers were read on Defendant's motion for an order of dismissal:

1. Notice of Motion and Supporting Affirmation of Thomas G. Ramsay, Esq., with Annexed Exhibit

2. Affirmation in Opposition of Clark J. Zimmermann, Jr., Esq.

3. Filed Papers: Claim

This claim arose August 9, 2001, at Albion Correctional Facility, where Claimant was incarcerated. It is alleged that on that date, Claimant was assaulted, raped and sodomized by Correction Officer Dean Schmidt. The claim sets forth six causes of action.

The first, fourth, and sixth causes of action are brought pursuant to 42 USC §1983 and allege various violations of rights guaranteed by the United States Constitution. It is well-established that sovereign States are not "persons" amenable to suit under 42 USC §1983 (Will v Michigan Dept. of State Police, 491 US 58). Consequently, these three causes of action will be dismissed without further discussion.

Claimant's second cause of action alleges that the State is vicariously liable for the officer's negligent and tortious action against Claimant. The third cause of action alleges that the State was negligent in its training, supervision and/or discipline of both the officer and the Superintendent of Albion. The fifth cause of action contains similar allegations with respect to the hiring and retention of Correction Officer Schmidt and also alleges that this officer had been the subject of prior complaints of misconduct (Claim, ¶45).

Defendant has moved to dismiss this claim, which is now reduced to these three causes of action, on several grounds, including that of untimeliness. The claim accrued on August 9, 2001, and, pursuant to Section 10(3) (negligence and unintentional torts) and/or Section 10(3-b) (intentional torts) of the Court of Claims Act, a notice of intention had to be served or a claim had to be filed and served within 90 days after that date, or by November 7, 2001. Claimant served the Attorney General with a notice of intention to file a claim on November 8, 2001 (Zimmermann Affirmation, Exhibit A), which counsel acknowledges was the ninety-first day after the claim's accrual (id., ¶24, ¶27). The claim was subsequently filed and served in August 2002. Claimant contends that the claim should not be dismissed, however, because the one day's untimeliness is de minimis and, in addition, because copies of the notice of intention were served in a timely fashion, on November 7, 2001, on Correction Officer Schmidt and on the Superintendent of Albion Correctional Facility (id., Exhibit B).

Section 11(a) of the Court of Claims Act requires that a copy of a claim or a notice of intention must be served on the Attorney General, and consequently service on another State officer will not suffice to give this Court jurisdiction over the Defendant State of New York. In addition, failure to comply with the time or manner of service requirements contained in Sections 10 and 11 of the Court of Claims Act is a fatal jurisdictional defect and deprives this Court of the power to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721; Bogel v State of New York, 175 AD2d 493). Even those claims that miss the filing or service deadlines by only one day must be dismissed (Dependable Trucking Co. v New York State Thruway Auth., 41 AD2d 985; Matter of Marshall v State of New York, 144 Misc 2d 193).

Counsel for Claimant did not cross-move for permission to file an untimely claim pursuant to Court of Claims Act §10(6) but, rather, merely added a request for such relief within his affirmation in opposition to the motion to dismiss (Zimmermann Affirmation, ¶¶31-43). Section 10(6) of the Court of Claims Act now expressly requires that application for the relief provided by that subdivision "shall be made upon motion" (L 2001, ch 205, §1, as amended).

Absent service and filing of a notice of motion or order to show cause seeking late claim relief, the Court is powerless to grant claimants' request for such relief (see, Court of Claims Act §10 (6); Sciarabba v State of New York, 152 AD2d 229). A request for late claim relief included in one's opposition to a motion for summary judgment, even if the §10 (6) statutory factors are addressed, is insufficient to place the application before the Court (CPLR 2215).

(Bullard v State of New York, Ct Cl, April 18, 2002, [Claim No. 103138, Motion Nos. M-64624, M-64630], MacLaw No. 2002-015-237, Collins, J.)[1] Likewise, a request for late claim relief that, as in this instance, is included in Claimant's papers opposing a motion for dismissal is insufficient to place the application before the Court.

Defendant's motion is granted, and the claim is dismissed.

January 15, 2003
Rochester, New York

Judge of the Court of Claims

  1. [1]This and other Court of Claims Decisions may be found on the Court of Claims website at