New York State Court of Claims

New York State Court of Claims

ONITIRI v. CUNY, COLLEGE OF STATEN ISLAND, #2003-028-528, Claim No. 106959, Motion No. M-66219


Synopsis


Case Information

UID:
2003-028-528
Claimant(s):
PETER ONITIRI
Claimant short name:
ONITIRI
Footnote (claimant name) :

Defendant(s):
CUNY, COLLEGE OF STATEN ISLAND
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106959
Motion number(s):
M-66219
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
PETER ONITIRI, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Grace A. Brannigan, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 10, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on the Defendant's Motion pursuant to Rule 3211 of the CPLR and Court of Claims Act §§10 and 11, dismissing the Claim:

(1) Notice of Motion and Supporting Affirmation of Assistant Attorney General Grace A. Brannigan (Brannigan Affirmation) with annexed Exhibits "A" and "B" filed December 17, 2002;

(2) Affidavit in Opposition of Peter Onitiri, with Exhibits annexed [unnumbered] filed

December 30, 2002.


Claimant Peter Onitiri seeks damages for monies withheld from his income tax refunds. The monies represent repayment of student loans. Claimant also claims that the retained funds were not credited to his account. The State moves to dismiss the claim based upon the fact that the Claim was not filed in a timely manner. The State also alleges that the monies retained were credited to his account. The Claimant opposes the application.

In the present matter, the Claim for damages was filed on November 20, 2002 and served upon the office of the Attorney-General on November 19, 2002 (Exhibit "A" annexed to Notice of Motion).[1] The Claimant alleges that the cause of action giving rise to the instant Claim arose on September 27, 2002. However, the Claim appears to have arisen at least six (6) years earlier in 1996, when the Claimant became aware that "...The College of Staten Island started taking my tax to offset my student loan (sic)..." (Claim, Exhibit "A" annexed to Notice of Motion).

In general, a claim will be said to accrue when a person is able to ascertain with a reasonable degree of certainty that damages have been suffered (see Dozois v State of New York, Claim No. 102743, Motion #M-62866, dated September 26, 2001). Here the Claimant has been aware of collection efforts dating back to 1996. Accordingly, the Court finds that the Claim accrued in 1996 when Claimant became aware that his monies (refunds) were being withheld. This finding is further buttressed by the fact that a prior claim had been filed with this Court, based upon attempts to secure payment of delinquent student loans.

Section 10(3) of the Court of Claims Act requires that a Claim be filed within ninety (90) days after its accrual, unless the claimant has served the office of the Attorney-General with a written notice of intention to file a claim. Here, neither the Notice of Intention was served nor was the Claim filed within the appropriate period. Accordingly, the Court lacks jurisdiction (see Byrne v State of New York, 104 AD2d 782; lv denied 64 NY2d 607; Calderozzo v State of New York, 74 AD2d 954). Therefore, the Court is constrained to grant the Motion and the claim is hereby dismissed.


April 10, 2003
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims





[1] A similar claim was filed by Mr. Onitiri in June of 1996 and was dismissed by Decision and Order of Judge Susan Phillips Read on April 16, 1999. The dismissal was based upon the failure to serve the claim upon the office of the Attorney-General.