New York State Court of Claims

New York State Court of Claims

NICHOLAS v. THE STATE OF NEW YORK, #2004-009-09, Claim No. 108372, Motion No. M-67608


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):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General
BY: Mary R. Humphrey
Senior AttorneyOf Counsel.
Third-party defendant's attorney:

Signature date:
February 18, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this pre-answer motion seeking an order dismissing the claim.

The following papers were considered by the Court in connection with this motion:
Pre-Answer Motion to Dismiss Claim, Affirmation, with Exhibits 1,2

Amended Pre-Answer Motion to Dismiss Claim, Affirmation, with Exhibits 3,4

In his claim, claimant seeks to recover damages for personal injuries based upon allegations of negligence, arising from an incident which occurred on January 20, 2003, while claimant was incarcerated at Mohawk Correctional Facility. Claimant alleges that on that day, he was sitting in a chair at the facility when it collapsed, causing injuries to his lower back. Claimant asserts that the State was negligent in failing to properly maintain and inspect this piece of furniture.

Pursuant to Court of Claims Act § 10(3), a claim alleging acts of negligence against the State must be served on the Attorney General and filed with the Clerk of the Court of Claims within 90 days of accrual, unless a notice of intention to file a claim is served upon the Attorney General within such 90 day period. If a notice of intention is served upon the Attorney General within the 90 days following accrual, the claim must then be served and filed within two years from the date of accrual.

In this claim, claimant alleges that his claim accrued at Mohawk Correctional Facility on January 20, 2003. Service of the claim upon the Attorney General was made on October 7, 2003, as evidenced by the date which is stamped on the copy of the claim served upon the Attorney General (see Exhibit "A" to Items 1,2). According to Court records, the claim was filed with the Clerk of the Court of Claims on the same date, October 7, 2003.

It is therefore apparent that the service and filing of this claim was not completed within the 90 days following accrual of the claim as required by § 10(3).

As set forth in the amended motion papers (see Items 3,4), however, claimant had previously served a claim upon the Attorney General on January 29, 2003, asserting the same allegations as contained in the present claim. The claim served on January 29, 2003, however, was never filed with the Clerk of the Court of Claims. When defendant filed its answer, discovery demands, and demand for verified bill of particulars with the Clerk of the Court of Claims , claimant was notified by the Chief Clerk (see Exhibit G to Items 3,4) that his claim had not been filed. Therefore, even though claimant's first attempt to institute this claim was timely served, his failure to file said claim created a jurisdictional defect which cannot be ignored.

Similarly, claimant's second attempt to proceed with this claim was also jurisdictionally defective, since both his service of the claim and filing with the Clerk of the Court were untimely.

The service and filing requirements of the Court of Claims Act are jurisdictional prerequisites to the institution and maintenance of a claim against the State and therefore they must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721; Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607). As a result, this Court does not have the authority to cure or overlook defects in the time and/or manner of filing.

Furthermore, the Court notes that claimant has not submitted any response to either the motion or amended motion herein.[1]

Based on the foregoing, it is

ORDERED, that Motion No. M-67608 is hereby GRANTED; and it is further

ORDERED, that Claim No. 108372 is hereby DISMISSED.

February 18, 2004
Syracuse, New York
Judge of the Court of Claims

[1] The Court is aware that its notification advising the parties of the return date for this motion, which was mailed to claimant on November 19, 2003, has been returned to the Court, based upon claimant's apparent release from Mohawk Correctional Facility. It is claimant's obligation, however, to apprise the Court of any change in address (see § 206.6[f] of the Uniform Rules for the Court of Claims).