New York State Court of Claims

New York State Court of Claims

SONIDO v. STATE OF NEW YORK, #2003-018-228, Claim No. 107092, Motion No. M-66649


Synopsis


Defendant's motion to dismiss claim is granted. The document claimant filed with the Clerk of the Court on December 18, 2002, was intended by claimant to be only a notice of intention.

Case Information

UID:
2003-018-228
Claimant(s):
ANDY SONIDO
Claimant short name:
SONIDO
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107092
Motion number(s):
M-66649
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
ANDY SONIDOPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 11, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
Defendant has brought a motion to dismiss for failure to properly serve the claim. Defendant asserts that the claim was served on December 18, 2002, by regular mail, not certified mail, return receipt requested, or personal service as required by Court of Claims Act § 11. Claimant responds to the motion and acknowledges that the document, labeled "Notice of Claim" sent to the attorney general on December 13, 2002, was not served by certified mail, return receipt requested. Claimant asserts that he re-served the document upon the Court of Claims and attorney general on January 8, 2003, by certified mail, return receipt requested, which was within 90 days of the date of accrual since the claim accrued on December 7, 2002. Claimant further alleges that the document served upon the attorney general and filed with the Clerk of the Court was not a claim but a notice of intention to file the claim and that he still has "eight months remaining in order to file his actual claim" (Amended Affidavit of Andy Sonido, ¶ 4). Claimant submitted an application for a reduction in the filing fee
to the Clerk of the Court with the document labeled a "Notice of Claim," and the application was granted by Order of Judge Richard Sise, filed January 14, 2003.
Defendant has acknowledged service of another identical copy of the document labeled "Notice of Claim" by certified mail return receipt requested on January 13, 2003.

Pursuant to Court of Claims Act § 10(3) a claim must be filed and served within 90 days of the date of accrual or a notice of intention to file a claim may be served within that same time frame and then a claim must be served and filed within two years of the date of accrual. There is no longer a requirement that a notice of intention be filed and no filing fee or application for a reduction in the fee need be filed with the Clerk of the Court until the claim is filed.

Accordingly, based upon all of the foregoing, since claimant intended the document he filed with the Clerk of the Court on December 18, 2002, to be only a notice of intention to file a claim and not the claim, the Court GRANTS defendant's motion to dismiss the claim and directs the Clerk of the Court to reimburse claimant the amount of any filing fee paid. Claimant has timely and properly served a notice of intention upon the attorney general and now has two years from the date of accrual to file and serve his claim with the Clerk of the Court in accordance with the Court of Claims Act.

June 11, 2003
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court considered the following documents in deciding this motion:

Notice of motion...............................................................................................1

Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney

General, in support, with exhibits attached thereto...............................2


Notice of motion in opposition and affidavit in support of Andy Sonido

(treated by the Court as a response) with exhibits attached thereto......3


Reply affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney

General...................................................................................................4


Amended notice of motion in opposition and affidavit in support

of Andy Sonido (treated by the Court as a response) with exhibits

attached thereto.......................................................................................5