New York State Court of Claims

New York State Court of Claims

BONACCI v. THE STATE OF NEW YORK, #2003-032-060, Claim No. 107191, Motion No. M-66600


Synopsis


Defendant's motion to dismiss the claim is granted, and the claim is dismissed, on the ground that it was improperly served.



Case Information

UID:
2003-032-060
Claimant(s):
ANTHONY BONACCI
Claimant short name:
BONACCI
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107191
Motion number(s):
M-66600
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Anthony Bonacci, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Belinda A. Wagner, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 20, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim seeks compensation for injuries sustained when claimant was assaulted by another inmate at Upstate Correctional Facility on November 4, 2002. In lieu of answering, the State has moved to dismiss the claim on ground of untimeliness.

In support of the motion, counsel for defendant has submitted a photocopy of the claim, indicating that it was received by the Office of the Attorney General on February 21, 2003 (Wagner affirmation, Exhibit A). The claim was filed earlier with the Court on

January 13, 2003. Section 10(3) of the Court of Claims Act requires that with respect to claims for property loss or personal injury allegedly caused by the negligence or unintentional tort of a State employee, either a notice of intention to file a claim must be served, or a claim must be filed and served, within 90 days after the date the claim accrued. The 90th day after November 4, 2002 was February 2, 2003. Contrary to claimant's argument in his letter of opposition, timely filing of the claim alone cannot serve to properly commence an action. This claim is untimely.

Failure to comply with the time and manner of service requirements contained in sections 10 and 11 of the Court of Claims Act is a fatal jurisdictional defect and deprives this Court of the power to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Bogel v State of New York, 175 AD2d 493 [3d Dept 1991]).

Consequently, defendant's motion is granted, and Claim No.107191 is dismissed.



June 20, 2003
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


The following papers were read on defendant's motion for an order of dismissal:
1. Notice of Motion and Supporting Affidavit of Belinda A. Wagner, Esq., AAG, with annexed Exhibit

2. Letter in Opposition of Anthony Bonacci, pro se

Filed papers: Claim