New York State Court of Claims

New York State Court of Claims

FRANCIS v. THE STATE OF NEW YORK, #2003-019-577, Claim No. 108347, Motion No. M-67697


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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
December 22, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant State of New York (hereinafter "State") moves for dismissal pursuant to CPLR 3211. Claimant, an inmate appearing pro se, opposes the motion.[1]

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.

December 22, 2003
Binghamton, New York

Judge of the Court of Claims

The Court has considered the following papers in connection with this motion:
  1. Claim, filed October 1, 2003.
  2. Notice of Motion No. M-67697, dated October 10, 2003, and filed October 15, 2003.
  3. Affirmation of James E. Shoemaker, AAG, in support of motion, dated October 10, 2003.
  4. Affidavit of Patrick Francis, in opposition to motion, sworn to October 22, 2003, and filed October 27, 2003.

[1]Claimant filed this claim pro se, although the filing fee was paid by the law firm of Saasto & Hirsch. The Clerk of the Court advised Saasto & Hirsch by letter dated November 19, 2003, that although their payment would be deemed a notice of appearance for the purposes of processing payment and calendering the motion, the law firm was still required to file a standard notice of appearance. However, no formal notice of appearance has ever been filed with the Clerk of the Court. Moreover, the assistant attorney general represented to chambers that he was contacted by Saasto & Hirsch about a possible adjournment of this motion and instructed them to contact chambers directly with such a request. The court never received any request for an adjournment and the opposing papers were submitted by claimant with a "pro se" designation. Consequently, the court is still of the opinion that claimant is proceeding pro se.