New York State Court of Claims

New York State Court of Claims

MOORE v. THE STATE OF NEW YORK, #2003-015-358, Claim No. 107354, Motion No. M-67157


Claim dismissed for lack of jurisdiction based upon its untimely service upon the Attorney General.

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:
Eric Moore, Pro SeNo Appearance
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 9, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion to dismiss the claim for lack of jurisdiction is granted. Claimant seeks to recover damages for personal injuries sustained on August 23, 2002 in the main yard of Great Meadow Correctional Facility, Comstock, New York where he was allegedly attacked by an unknown fellow inmate receiving lacerations to his face and two fingers of his right hand.

By decision and order dated July 7, 2003 this Court denied as unnecessary claimant's motion for late claim relief. The Court there noted that although the defendant had timely raised the jurisdictional defense of untimely service in its answer, the issue of the claim's timeliness was not before the Court on the late claim motion and the defendant did not "move to dismiss the claim either before or in response to the instant motion". Claimant has not opposed the motion.

The time requirements set forth in section 10 of the Court of Claims Act are more than Statutes of Limitation. Indeed, they have been found to be conditions precedent to the commencement and maintenance of a claim against the State and are to be strictly construed (Pelnick v State of New York, 171 AD2d 734). The Court of Appeals has held that the limitations contained in Article II of the Court of Claims Act represent an integral part of the waiver of immunity, the failure to comply with which deprives this Court of jurisdiction to entertain the claim (Lichtenstein v State of New York, 93 NY2d 911, Dreger v New York State Thruway Auth., 81 NY2d 721).

Absent proper service of a notice of intention to file a claim upon the Attorney General a claimant is required to serve and file a claim for negligence within 90 days of the claim's accrual pursuant to Court of Claims Act § 10 (3). Failure to file a claim within the time permitted in section 10 (3) of the Act is a fatal jurisdictional defect requiring dismissal of a claim (Philippe v State of New York, 248 AD2d 827; Collado v State of New York, 207 AD2d 936).

Although a defense based upon untimeliness may be waived pursuant to Court of Claims Act § 11(c) no such waiver occurred here since the defendant raised the issue with particularity in the third paragraph of its answer which states:
THIRD: The claim was not filed or served within the 90-day time limitation as prescribed by Sections 10 (3) and 11 of the Court of Claims Act. Accordingly, the Court lacks subject matter jurisdiction of the claim and personal jurisdiction over defendant, the State of New York.

The proof submitted on the motion establishes that the claim was served upon the Attorney General by Certified Mail, Return Receipt Requested, on February 7, 2003 and received by that Office on February 10, 2003 (Exhibit A). It is thus established for purposes of the motion that the claimant failed to serve the claim within the time period provided therefor in Court of Claims Act § 10 (3) when measured from the August 23, 2002 accrual date. Having properly raised the issue in its answer the defendant is entitled to dismissal for claimant's failure to satisfy the time limitations contained in section 10 of the Court of Claims Act. The claim is, accordingly, dismissed.

October 9, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated July 23, 2003;
  2. Affirmation of Michael W. Friedman dated July 23, 2003 with exhibits;