New York State Court of Claims

New York State Court of Claims

CAMACHO v. THE STATE OF NEW YORK, #2004-030-605, Claim No. 109169, Motion No. M-69429


Case Information

JOSE CAMACHO The caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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Motion number(s):
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Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
December 16, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 4 were read and considered on Defendant's motion to dismiss:
1,2 Notice of Motion; Affirmation by Elyse J. Angelico, Assistant Attorney General and attached exhibits

3,4 Filed Papers: Claim, Answer

No Opposition filed.

Jose Camacho, the Claimant herein, alleges in Claim Number 109169 that "members of NNEU" executed a search warrant at 51 Beechwood Terrace in Yonkers, New York on March 26, 1996 and seized $16,395.00. Although the Claim does not specifically demand it, it appears he seeks the return of this sum. Additionally, it is unclear what State agency is involved, if any, whether the acts complained of are negligent or intentional, or indeed exactly what happened beyond execution of a search warrant on March 26, 1996 at an address that Claimant does not even indicate is his own. He does not state his current address in the Claim.

A file stamped copy of the Claim indicates that the Claim was received by the Attorney General's Office on April 8, 2004. [Affirmation by Elyse J. Angelico, Exhibit A]. The Claim was filed with the office of the Chief Clerk of the Court of Claims on April 9, 2004. Additionally, a "Notice of Claim" was apparently received by the Office of the Attorney General on March 4, 2004. [Affirmation by Elyse J. Angelico, Exhibit A].

In its Answer, in addition to general denials, the Defendant raises eleven affirmative defenses. In its Eighth and Eleventh Affirmative Defenses, the issue of the timeliness of the Claim is raised. The Defendant now moves to dismiss the Claim based upon a failure to timely serve the Defendant and to timely file the Claim. Court of Claims Act §§10 and 11.

Court of Claims Act §10(3-b) requires that a claim to recover damages for injuries to property caused by the intentional tort of a state employee be served and filed within ninety (90) days of its accrual, unless a Notice of Intention has been served upon the Attorney General within ninety (90) days of accrual, in which case the Claim must be served upon the Attorney General within one (1) year of accrual, and filed with the Court of Claims within the same time frame. Court of Claims Act §11. Where the actions complained of are negligent rather than intentional, the same ninety (90) day period applies, however a Claimant who has properly served a Notice of Intention within ninety (90) days has two (2) years within which to serve and file his claim. Court of Claims Act §10(3).[1]

The claim herein accrued on March 26, 1996; almost eight years before it was served and filed. The "Notice of Claim" apparently received one (1) month before the Claim was received was not served within ninety (90) days of the accrual of the claim, and does not, therefore, operate to toll the statute of limitations.

Because the applicable statute provides ". . . [n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim . . ." [ Court of Claims Act §10], the provisions concerning service and filing have been strictly construed. See e.g., Welch v State of New York, 286 AD2d 496, 729 NYS2d 527, 529 (2d Dept 2001); Conner v State of New York, 268 AD2d 706, 707 (3d Dept 2000). Defenses based upon failure to comply with time limitations, among others, are waived unless the defense is raised with particularity either in a responsive pleading or in a pre-answer motion to dismiss. Court of Claims Act §11(c). Here, the State's Verified Answer pleaded the defense with sufficient particularity, preserving the issue for review.

Accordingly, Defendant's motion to dismiss based upon a failure to serve and file the claim within the statute of limitations period, is hereby granted, and Claim Number 109169 is dismissed in its entirety.

December 16, 2004
White Plains, New York

Judge of the Court of Claims

[1] Under the Civil Practice Law and Rules, the applicable statute of limitations for recovery of personal property is three (3) years, [see Civil Practice Law and Rules §214], however given that there are specific periods provided for in the Court of Claims Act, limitations periods provided for in the Civil Practice Law and Rules would not necessarily apply. See e.g. DeFilippis v State of New York, 157 AD2d 826, 828 (2d Dept 1990); Kaplan v State of New York, 152 AD2d 417, 418-419 (3d Dept 1989). The failure to state the nature of the claim as required by Court of Claims Act §11(b) makes it difficult to determine what period is applicable. See Chimbo v State of New York, 214 AD2d 531 (2d Dept 1995).