Defendant brings a pre-answer motion to dismiss the claim on two separate
the claim is untimely pursuant to Court of Claims Act §§ 10(3) and 11
and fails to state a cause of action. Claimant has not responded to the motion.
Defendant served the motion upon Claimant by regular mail on July 22,
The claim seeks $75,000 in damages for a violation of Claimant's equal
protection rights under Article I, Section 11 of the New York State
Constitution. Claimant alleges that the claim accrued on September 24, 2003, in
the County of Wyoming at Attica Correctional Facility. On that date, Claimant
asserts that he received a letter from the Clerk's Office of the "Appellate
Section" advising that once assigned counsel files a brief, "plaintiff must make
a request for the trial record"(Claim ¶ Third [A]). Claimant alleges that
on July 22, 2002, he requested his trial record but was informed that he must
pay the cost of reproducing it. He next alleges that in January 2004, he tried
to get the trial record, but the Clerk's office of the "Appellate Section"
failed to respond (Claim ¶ Third [C]). In February 2004, he again tried to
get the trial record to "perfect" his supplemental brief, but received no
response from the Clerk's office of the "Appellate Section" (Claim ¶ Third
[D]). He alleges that the Clerk failed to provide the transcripts he needed to
perfect an appeal violating his Equal Protection rights.
Defendant argues that the claim is untimely. The claim recites an accrual date
of September 24, 2003, and Claimant did not file and serve the claim until June
14, 2004, nine months later, and well beyond the 90 days required by Court of
Claims Act § 10(3).
Alternatively, Defendant argues that Claimant has no cause of action. The
Assistant Attorney General attaches a copy of a letter from Glenda K. Brayman,
Court Clerk Specialist of the New York State Supreme Court Appellate Division,
Fourth Department to the motion papers (Exhibit D). In the letter, Ms. Brayman
advises Claimant that on his pending appeal, after his assigned counsel has
filed a trial record and brief and served a copy on the People, Claimant may
renew his request for a copy of the trial record. The letter also advises
Claimant that within 45 days after the record and brief of assigned counsel has
been filed, he can also file a pro se supplemental brief with the Clerk. Thus,
Defendant argues that on September 24, 2003, the Clerk of the Appellate
Division, Fourth Department, did not have a trial record to provide to
Court of Claims Act § 10(3) requires that a claim sounding in negligence
or unintentional tort must be served and filed within 90 days of the date of
accrual, unless a notice of intention is served upon the attorney general within
that time, in which case a claim must be filed and served within two years of
the date of accrual. The requirements for timely filing and serving a claim are
strictly construed jurisdictional prerequisites to the institution and
maintenance of an action against the State (Buckles v State of New York,
221 NY 418; Byrne v State of New York, 104 AD2d 782, lv denied 64
Here, if we accept Claimant's date of accrual, a claim should have been filed
by December 23, 2003. Even using the end of February 2004, the last time which
Claimant asserts the clerk failed to respond to his letter requesting a copy of
the trial record, as the date of accrual, a claim should have been filed by June
Here, the claim was not served or
filed until 14 days later.
The Defendant's motion must be granted and the claim DISMISSED.
The Court has considered the following documents in deciding this motion:
Affirmation of Reynolds E. Hahn, Esquire, Assistant Attorney General
in support, with exhibits attached
Claimant has not responded to the motion.