New York State Court of Claims

New York State Court of Claims

MORRIS v. THE STATE OF NEW YORK, #2004-016-054, Claim No. None, Motion No. M-68220


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):

Alan C. Marin
Claimant's attorney:
Milbank, Tweed, Hadley & McCloy LLPBy: Josepth S. Genova, Esq., Elena A. Agarkova, Esq., Atara Miller, Esq. and Anthony Rotondi, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, Esq., AAG
Third-party defendant's attorney:

Signature date:
September 17, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is Beatrice Morris' motion pursuant to §10.8 of the Court of Claims Act (the "Act") for an Order permitting her to treat her notice of intention as a claim and to then file an amended claim. In her notice of intention, Ms. Morris alleges that on April 18, 1999, while incarcerated at Bayview Correctional Facility, she was sexually assaulted by a correction officer. The relevant procedural history is as follows. Claimant timely served a notice of intention on July 12, 1999, but did not thereafter serve and file a claim; §10.3 of the Act requires that if a notice of intention is served, a claim must then be served and filed within two years of accrual.

On October 21, 2000, claimant filed a complaint in the United State District Court for the Southern District of New York, naming the New York State Department of Correctional Services ("DOCS") along with the correction officer who assaulted her and various other DOCS employees. On January 18, 2002, she filed an amended complaint in her federal case; such did not name DOCS as a defendant and both added and deleted certain individual defendants.

In a September 23, 2003 opinion, Judge Denny Chin granted in part defendants' motion for summary judgment; as to the State of New York, Judge Chin ruled that a claim against such defendant would have to be pursued in the Court of Claims. See exhibit O to claimant's moving papers.
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Section 10.8 of the Court of Claims Act (the "Act") provides that a claimant who timely serves a notice of intention, but who fails to timely serve or file a claim, may apply to the court for permission to treat the notice of intention as a claim. Section 10.8 further provides that a motion thereunder may not be granted if the statute of limitations on the underlying cause of action has run.

The assault in this case occurred on April 18, 1999. It is undisputed that any applicable statute of limitation has expired. Consequently, claimant relies on §205(a) of the New York Civil Practice Law and Rules, which provides in relevant part that:
[i]f an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence . . . within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.

Claimant argues that §205(a) applies to her case because: her federal action was commenced within the relevant statute of limitations, such action was not terminated via any of the enumerated grounds, and this motion was made within six months of dismissal.
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As set forth above, it is a threshold requirement of §205(a) that Ms. Morris' prior action was "timely commenced." The Court of Appeals has stated that:
We have consistently held that, for purposes of CPLR 205(a) actions prior to the 1992 CPLR amendments[1] . . . timely commencement requires literal compliance with the relevant statutes governing notice . . . Under section 11 [of the Court of Claims Act], both filing with the court and service on the Attorney-General must occur within the applicable limitations period . . . Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed . . . where . . . claimants have not met the literal requirements of Court of Claims Act §11, their actions are not timely commenced, and relief under CPLR 205(a) is not available.

Dreger v New York State Thruway Authority
, 81 NY2d 721, 723-24, 593 NYS2d 758, 759 (1992) (citations omitted).

Ms. Morris failed to meet the requirements of §11 of the Act - - which requires filing of a claim with the Clerk of the Court of Claims and service of such claim on the Attorney General - - when she commenced an action in federal court. Consequently, for the purposes of CPLR 205(a), her action was not timely commenced.

See also, e.g., the following cases, in which CPLR 205(a) was found not applicable to extend the time requirements of §10 of the Act: Cancel v State of New York, Ct Cl dated December 18, 2002 (claim no. 106521, motion no. M-65864, unreported, Hard, J., UID #2002-032-019[2]); Jones v State of New York, Ct Cl dated December 11, 2002 (claim no. 105792, motion no. M-65003, cross-motion no. CM-65106, unreported, Fitzpatrick, J., UID #2002-018-172); D'Aprice v State of New York, Ct Cl dated March 16, 2001 (claim nos. 99693 and 102068, motion nos. M-61151 and M-61424, cross-motion nos. CM-61323 and CM-61678, unreported, Corbett, J., UID #2001-005-505); and Skiptunas v State of New York, Ct Cl dated November 20, 2000 (claim no. 102744, motion no. M-62254, unreported, Collins, J., UID #2000-015-103), affd 290 AD2d 868, 736 NYS2d 767 (3d Dept 2002).

In sum, CPLR §205(a) does not apply here and since claimant's motion under §10.8 was made after the expiration of the underlying statute of limitations, relief under §10.8 is not available. In view of the foregoing, defendant's remaining arguments need not be addressed.

Accordingly, having reviewed the parties submissions[3] and having heard oral argument on June 21, 2004, IT IS ORDERED that motion no. M-68220 be denied.

September 17, 2004
New York, New York

Judge of the Court of Claims

  1. [1]The 1992 amendments are unrelated to the issues on this motion.
  2. [2]This and other decisions of the Court of Claims may be found on the Court's website:
  3. [3]The following were reviewed: claimant's notice of motion with affirmation in support, exhibits A-Q and memorandum of law; defendant' s affirmation in opposition with undesignated attachments; and claimant's reply affirmation.