New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2003-032-091, Claim No. 104721, Motion Nos. M-66394, M-66951


Motion for permission to treat a notice of intention as a claim or for permission to late file is denied, and claim is dismissed as untimely. Claimant's motion to compel is denied as moot.

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):
M-66394, M-66951
Cross-motion number(s):

Claimant's attorney:
Alberto Rodriguez, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Glenn C. King, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
September 18, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


On August 14, 2001, a handwritten claim (Claim No. 104721) was filed with the Court. This claim alleged that on
May 1, 1999, claimant was injured while playing basketball in the recreation area of Clinton Correctional Facility Annex. He stated that while playing basketball and attempting a lay-up, he stumbled and struck his head. The State's liability for this injury is alleged to be its negligence in maintaining the recreational area in a reasonably safe condition. The claim states that claimant served a timely notice of intention to file a claim on May 24, 1999.
In its answer to this claim, defendant raised, as its sixth affirmative defense, the following:That this Court lacks personal jurisdiction over the defendant and subject matter jurisdiction over the claim in that although claimant served a notice of intention to file a claim he failed to file and serve a claim within two years after accrual of the claim as required by §10(3) of the Court of Claims Act.
This statement raises the defense of untimeliness with sufficient particularity to meet the pleading requirement of section 11(c) of the Act.
Apparently in response to the defense of untimeliness, claimant has now moved for permission to treat the notice of intention as the claim (Court of Claims Act §10[8]), or alternatively, for permission to file an untimely claim (Court of Claims Act §10[6]). Counsel for defendant argues that neither of these forms of extraordinary relief are available because the motion was not commenced until after the CPLR Article 2 Statute of Limitations period had run.
The asserted claim sounds in negligence, and consequently, the three year Statute of Limitations found in CPLR 214 would apply to this action if it were commenced against a private citizen. May 1, 2002, therefore, was the last date on which a claim could be filed against a private citizen, and a motion for permission either to treat a notice of intention as a claim or to late file an untimely claim was required to be commenced by that date. The instant motion was not filed until the following year.
Consequently, claimant's motion must be denied.
With respect to Claim No. 104721, claimant has implicitly conceded that he failed to meet the time limitations of section 10(3) of the Court of Claims Act when he commenced that action. With respect to personal injury claims arising from the alleged negligence of State officers or employees, either a claim must be filed and served or a notice of intention must be served within 90 days after the claim accrues. Where, as here, a notice of intention is employed, the statute then directs that "the claim shall be filed and served upon the attorney general within two years after the accrual of such claim." Claimant failed to meet this requirement.[1] In the interest of judicial economy, the Court holds that Claim No. 104721 is untimely, and sua sponte, directs that it be dismissed. As a result, Motion No. M-66951, claimant's motion to compel certain discovery in Claim No. 104721 is denied as moot.
Claimant's Motion No. M-66394 is denied on the merits; Motion No. M-66951 is denied as moot; and Claim No. 104721 is dismissed by the Court sua sponte.

September 18, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion for permission have his notice of intention treated as a claim or, alternatively, to file an untimely claim (Motion No. M-66394) and claimant's motion for an order to compel discovery (Motion No. M-66951).

Motion No. M-66394

1. Notice of Motion and Supporting Affidavit of Alberto Rodriguez, pro se, with annexed proposed claim, exhibits and memorandum of law.

2. Affirmation in Opposition of Glenn C. King, Esq., AAG, with annexed Exhibits

3. Reply Affidavit and Memorandum of Law of Alberto Rodriguez, pro se

Motion No. M-66951

1. Notice of Motion and Supporting Affidavit of Alberto Rodriguez, pro se

Affirmation in Opposition (none received)

Filed papers: Claim - Answer

[1] In his reply papers, claimant takes strong exception to defense counsel's statement that when it was served, the claim was served by ordinary mail rather than certified mail, return receipt requested, as required by Court of Claims Act §11(a) (King affirmation, ¶¶5,6, Exhibit A). Claimant contends that he had made every effort to use the proper method of service but that prison officials failed to carry out the necessary steps. This issue is irrelevant, however, as the ground on which this claim is dismissed is untimeliness, not improper service.