New York State Court of Claims

New York State Court of Claims

GILL v. THE STATE OF NEW YORK, #2003-031-070, Claim No. 103481, Motion No. M-67296


Synopsis


Neither a claim nor a notice of intention to file a claim were filed within 90 days of accrual of action. Claim is untimely and must be dismissed

Case Information

UID:
2003-031-070
Claimant(s):
ANTHONY GILL
Claimant short name:
GILL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103481
Motion number(s):
M-67296
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
ANTHONY GILL, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: TIMOTHY P. MULVEY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 9, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers, numbered 1 to 4, were read on motion by Defendant for dismissal of the claim as untimely:
1) Notice of Motion, filed August 25, 2003;
2) Affirmation of Timothy P. Mulvey, Esq., dated August 21, 2003, with attached exhibits;
3) Claimant's affidavit (denominated affirmation), sworn to August 25, 2003, with attached exhibit;
4) Filed papers: Claim and Answer. Claimant commenced this action for medical negligence/malpractice, alleging that on July 7, 2000, a healthy tooth was improperly extracted, over his objection, by a dentist at Auburn Correctional Facility ("Auburn").

Defendant brings this motion seeking dismissal of the claim based upon Claimant's failure to serve either his claim or a notice of intention to file a claim upon the Attorney General within ninety days of accrual of the claim, as required by Court of Claims Act ("CCA") §§ 10 and 11. The State preserved this issue for review by raising, with particularity, the Claimant's failure to comply with these sections of the CCA as an affirmative defense in its Verified Answer. The Defendant asserts that no notice of intention was ever served upon the Attorney General's office and that the claim was not served until November 27, 2000, more than 90 days after accrual of this action.

Claimant has responded to Defendant's motion by arguing that his action is actually one for lost property (his tooth) and, therefore, pursuant to § 10(9) of the CCA, his time for filing the claim does not run from the date of accrual (July 7, 2000) but rather the date of exhaustion of his administrative remedies. Although I appreciate this clever argument, I find that it lacks merit. The claim in this matter is one for personal injuries Claimant suffered as a result of the alleged medical malpractice/negligence of the dentist at Auburn. This is not a case concerning lost or stolen property, and the exhaustion of administrative remedies provision of the CCA § 10(9) is not applicable.

Pursuant to CCA §10(3), a claim, or notice of intention to file a claim based upon personal injury resulting from the negligence or malpractice of an agent of the State, such as is alleged here, must be filed within ninety days. According to the CCA § 11, service upon the Attorney General is complete when "received in the office of the attorney general." It is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in the CCA §§ 10 and 11 are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). As such, the Claim must be dismissed as untimely.

Based upon the foregoing it is:

ORDERED, that Defendant's motion for dismissal of the claim is granted. The Clerk is directed to close the file.

September 9, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims