New York State Court of Claims

New York State Court of Claims

GARCIA v. THE STATE OF NEW YORK, #2003-028-543, Claim No. 104742, Motion No. M-66489


Synopsis


Case Information

UID:
2003-028-543
Claimant(s):
RAMON GARCIA, 97 R 0266
Claimant short name:
GARCIA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104742
Motion number(s):
M-66489
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
RAMON GARCIA, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Kevan J. ActonAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 30, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Defendant's motion to dismiss the claim:
  1. Notice of Motion and Supporting Affirmation of Assistant Attorney General Kevan J. Acton (Acton Affirmation) filed March 5, 2003;
  1. OPPOSITION PAPERS: None.

Filed Papers: Claim, filed August 17, 2001; Verified Answer filed September 27, 2001.

Claimant, while an inmate, alleges that on June 19, 1998 he fell while "attempting to climb into his assigned top bunk" (Claim, ¶ 4) and was injured. Thereafter, Claimant alleges that on June 26, 1998 he again fell while attempting to enter his bunk (id. at ¶ 7). Claimant alleges that the Defendant was negligent in failing to reassign him to a lower bunk. On August 17, 1998, Claimant served a Notice of Intention upon the office of the Attorney General (Acton Affirmation, ¶ 1; Answer, ¶ "third") and thereafter served his Claim on August 17, 2001.

Defendant moves for dismissal based upon its first affirmative defense, that the Claim is untimely served, a defense that was preserved with particularity in its answer (see Court of Claims Act §11[c]; Sinacore v State of New York, 176 Misc 2d 1, 6; Fowles v State of New York, 152 Misc 2d 837).

Claimant, by virtue of having timely served a Notice of Intention (see Court of Claims Act § 10[3]), extended by two years the time in which he was required to serve his Claim. However, it appears that Claimant then made two errors with regard to the service of his Claim. The first was an apparent belief that the time to serve the claim was measured from the date the notice of intention was served rather than the date of accrual. The second was that he had available to him the CPLR 214 three year statute of limitations rather than the Court of Claims Act § 10 limitation. As such, and pursuant to Court of Claims Act §10, Claimant was required to file and serve his claim within two years of either June 19, 1998 or June 26, 1998. Measured from either date, service of his claim on August 17, 2001 was untimely and deprives this Court of jurisdiction (see Voulgarelis v State of New York, 211 AD2d 675)[1].

Defendant also asserts that the Claim suffers from a fatal jurisdictional defect since it lacks a proper verification (Acton Affirmation, ¶ 4). The requirements set forth in Court of Claims Act § 11, which includes that the Claim be verified (see Court of Claims Act 11 [b]), are jurisdictional in nature and, as such, must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687; see also Lichtenstein v State of New York, 93 NY2d 911, 912-913 [applying same principles to requirements of Court of Claims Act § 10]). The Court is not free to temper application of a rule of law, whether done in the exercise of discretion, equity or because there is no prejudice and a harsh result will be avoided (see Martin v State of New York, 185 Misc 2d 799, 804-805, collecting cases). The subject Claim has attached a verification which, although signed by Claimant, is not signed by a notary public. The absence of the signature of the notary renders the Claim unverified (Pugliese v State of New York, Ct Cl, Midey, J., September 24, 2001, Claim No. 99992, UID #2001-009-045; [unverified claim is jurisdictionally defective]). Accordingly, the Court finds Claimant has failed to comply with the verification requirements as set forth in the CPLR and Court of Claims Act §11(b) and as such the Claim suffers from a jurisdictional defect.

By virtue of the foregoing, the Defendant's motion to dismiss the Claim is GRANTED in its entirety and Claim number 104742 shall be and hereby is dismissed.


May 30, 2003
Albany, New York

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





[1] Claimant, by having waited three years to serve his claim, is unable to now avail himself of the late filing provisions of Court of Claims Act § 10(6).