New York State Court of Claims

New York State Court of Claims

SERRANO v. THE STATE OF NEW YORK, #2004-009-29, Claim No. 108150, Motion No. M-67364


Synopsis


Case Information

UID:
2004-009-29
Claimant(s):
BENJAMIN SERRANO
Claimant short name:
SERRANO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108150
Motion number(s):
M-67364
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
ANDREW PLASSE, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Timothy P. Mulvey, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
April 21, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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:
Notice of Motion, Affirmation, with Exhibit 1,2

In this motion, defendant contends that the claim was not timely served upon the Attorney General and therefore should be dismissed. As set forth in the affirmation of defendant's counsel, the Attorney General was served with a claim on August 19, 2003, alleging that claimant was injured on or about September 9, 2002, when he was allegedly assaulted by another inmate while he was incarcerated at Auburn Correctional Facility. The claim alleges acts of negligence against the State in failing to prevent this assault.

Pursuant to Court of Claims Act § 10(3), a claim must be served upon the Attorney General and filed with the Clerk of the Court of Claims within 90 days from the date of accrual, unless within such time period a written notice of intention to file a claim is served upon the Attorney General, in which case the claim must then be filed and served within two years after accrual.

In his claim, claimant alleges that a notice of intention to file a claim was served upon the Attorney General within 90 days after the cause of action arose (see Exhibit A to Items 1,2, par. 3). In his affirmation in support of this motion, however, defendant's attorney states that the records from the office of the Attorney General contain no reference to any such service of a notice of intention by claimant. Claimant has not made any response to this motion, and has therefore not submitted any proof to support his contention that proper and timely service of a notice of intention was made in this matter.

Accordingly, this Court must conclude that contrary to the allegation set forth in his claim, a notice of intention was not served upon the Attorney General within 90 days from the date of accrual. Claimant therefore did not receive the benefit of the extension of time for service and filing of a claim authorized by service of a notice of intention pursuant to § 10(3). As a result, the claim, which was clearly not served and filed within 90 days from the date of accrual, is untimely.

The provisions of the Court of Claims Act relating to the time and manner of service and filing are jurisdictional prerequisites to the maintenance of a claim, and as such must be strictly construed (Greenspan Bros. v State of New York, 122 AD2d 249). As a result, this claim must be dismissed.

Accordingly, it is

ORDERED, that Motion No. M-67364 is hereby GRANTED; and it is further

ORDERED, that Claim No. 108150 is hereby DISMISSED.


April 21, 2004
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims