New York State Court of Claims

New York State Court of Claims

BLUDSON v. STATE OF NEW YORK, #2004-018-327, Claim No. 109480, Motion No. M-68830


Synopsis


Claim is dismissed as untimely pursuant to Court of Claims Act § 10(3).

Case Information

UID:
2004-018-327
Claimant(s):
DONNELL BLUDSON
Claimant short name:
BLUDSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109480
Motion number(s):
M-68830
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
DONNELL BLUDSONPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Reynolds E. Hahn, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 8, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings a pre-answer motion to dismiss the claim on two separate grounds, that

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, 2004.[1]

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 Claimant.

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 NY2d 607).

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 1, 2004.[2] Here, the claim was not served or filed until 14 days later.

The Defendant's motion must be granted and the claim DISMISSED.

September 8, 2004
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


Notice of Motion.................................................................................................1


Affirmation of Reynolds E. Hahn, Esquire, Assistant Attorney General

in support, with exhibits attached thereto................................................2


Claimant has not responded to the motion.


[1] See, Affirmation of service of Assistant Attorney General, Reynolds E. Hahn dated July 22, 2004.
[2] The 90th day is actually May 29, 2004, which is a Saturday, extending Claimant's time to file and serve a claim until the next business day, which would be Tuesday, June 1, after the Memorial Day holiday (General Construction Law § 25-a).