Pre-Answer Motion to Dismiss Claim, Affirmation, with Exhibits 1,2
Amended Pre-Answer Motion to Dismiss Claim, Affirmation, with
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
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
Furthermore, the Court notes that claimant has not submitted any response to
either the motion or amended motion herein.
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.