The defendant State of New York (hereinafter "State") moves for dismissal
pursuant to CPLR 3211. Claimant, an inmate appearing pro se, opposes the
Claimant alleges he received negligent medical care beginning "on or about
August 2001" when a cyst was removed from his back during his incarceration at
Woodbourne Correctional Facility. (Claim, ¶ 6). Further, claimant alleges
that since August 2001 he has been complaining about a condition in his left eye
and that the State's negligent medical care in relation thereto caused him to
completely lose his vision in his left eye. The claim further alleges that
claimant received additional medical consultations from outside physicians
regarding his eye condition as late as April 24, 2003. (Claim, ¶ 13).
This claim was served on the Attorney General's office on September 8, 2003 by
certified mail, return receipt requested, and filed with the Clerk of the Court
on October 1, 2003. The State files this motion to dismiss in lieu of an answer
on two grounds: (1) the claim was not timely filed and served in compliance with
Court of Claims Act ("CCA") 10 and 11; and (2) the claim was not properly
verified pursuant to CCA 11.
The State's first ground for dismissal is dispositive of this matter. The
State argues that this claim was untimely filed and served in violation of CCA
10 and 11. First, the court notes that claimant alleges he timely and properly
served a notice of intention. (Claim, ¶ 2; Claimant's Reply, ¶ 3).
However, the State avers it was never served with a notice of intention.
(Affirmation of James E. Shoemaker, AAG, ¶ 3). It is claimant's burden to
come forward with proof establishing service such as by producing the signed
green receipt card. (Commack Self-Serv. Kosher Meats v State of New
York, 270 AD2d 687). However, other than claimant's mere allegations, he
has failed to come forward with any proof of such service of a notice of
intention. Accordingly, without proof of service of a notice of intention,
claimant needed to file and serve a claim within 90 days from accrual in
accordance with CCA 10 and 11.
For purposes of argument, the State is willing to concede that this claim
accrued, at the latest, on April 24, 2003. Using this latest possible date of
accrual, namely April 24, 2003, claimant would have had to file and serve a
claim on or before July 23, 2003. Here, the claim was served on September 8,
2003 and filed on October 1, 2003, both beyond the statutory period to do so.
Consequently, this claim is untimely based upon claimant's failure to comply
with CCA 10 & 11 and the court need not reach the State's alternative
argument for dismissal.
Accordingly, for the reasons stated above, it is ORDERED that the State's
motion to dismiss, Motion No. M-67697, is GRANTED and Claim No. 108347 is
DISMISSED in its entirety.