New York State Court of Claims

New York State Court of Claims

BONILLA v. THE STATE OF NEW YORK, #2004-031-127, Claim No. 107322, Motion Nos. M-69048, M-69112


Neither claim nor notice of intention to file claim were served within 90 days after accrual of cause of action. Defendant's motion to dismiss the claim is granted. Claimant's motion for judicial subpoenas denied as moot

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):
M-69048, M-69112
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 15, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 through 6, were read on motion by Claimant for judicial subpoenas (M-69048) and by Defendant to dismiss the claim for untimely service (M-69112):
  1. Claimant's Notice of Motion (M-69048), filed September 7, 2004;
2) Claimant's Affidavit, sworn to August 27, 2004, with attached exhibits;
  1. Affidavit of Wendy E. Morcio, Esq., sworn to September 21, 2004, with attached exhibit;
4) Defendant's Notice of Motion (M-69112), filed September 21, 2004;
5) Affidavit of Wendy E. Morcio, Esq., sworn to September 20, 2004, with attached exhibits;
6) Claimant's Affidavit, sworn to September 30, 2004. Claimant commenced this action for personal injuries by filing a claim on February 13, 2003. The cause of action allegedly accrued on March 7, 2002, when Claimant slipped and fell on an ice-covered walkway at Gowanda Correctional Facility. Claimant alleges that he injured his left thumb and knee and seeks damages in the amount of $500,000.00. Claimant served Defendant with a notice of intention to file a claim on June 10, 2002.

Claimant has filed a motion (M-69048) seeking judicial subpoenas compelling the testimony of certain specified witnesses at trial. Defendant has moved for dismissal of the claim (M-69112), asserting that the Claimant failed to commence this action in a timely manner. I will first address Defendant's dispositive motion.

Defendant asserts that Claimant failed to serve either his claim or his notice of intention to file a claim within 90 days as required by Court of Claims Act § 10(3). Defendant's motion papers demonstrate, and Claimant does not dispute, that Claimant's notice of intention was received by Defendant on June 10, 2002, the 95th day after accrual of Claimant's cause of action.

Claimant argues that Defendant is responsible for the untimely service of his notice of intention because he gave the documents to be mailed to Department of Correctional Services employees on June 5, 2002 and the document was not mailed out until June 6, 2002. I find that this alleged 24 hour delay is neither unreasonable nor did it cause Claimant's notice of intention to be untimely as the 90th and final day for service of the notice of intention upon the Attorney General was June 5, 2002. Claimant could have no reasonable expectation that his notice of intention could both be mailed to and received by the Attorney General on the same day.

Claimant also argues that his notice of intention was received on a Monday and, since the previous two days were not business days, receipt of the notice of intention by Defendant on Monday June 10, 2002 was timely. While this argument has merit in instances when the last day for service falls on a Saturday, Sunday or public holiday, in this instance the last day for timely service fell on Wednesday June 5, 2002. For this reason the rule of construction that permits service on the next business day after a holiday or weekend does not avail Claimant (see General Construction Law §25-a).

Finally, Claimant argues that it is the date of mailing, not the date of receipt that is controlling for service upon the Attorney General. Claimant cites CPLR § 2103 in support of this contention. However, that section deals with service of papers upon an attorney in a pending action. Claimant ignores Court of Claims Act § 11(a)(i) which specifically states: "[s]ervice by certified mail, return receipt requested, upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general." This section mandates that it is the date of receipt, not the date of mailing which is controlling in this instance. Pursuant to Court of Claims Act § 10(3), a claim based upon personal injury resulting from the negligence, such as is alleged here, must be filed within ninety days unless Claimant has served a notice of intention to file a claim. As stated above, Claimant did not timely serve a notice of intention to file a claim. It is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in Court of Claims Act § 10 are jurisdictional in nature and must be strictly construed. (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). Accordingly, the claim in this matter must be dismissed as untimely, and Claimant's motion for judicial subpoenas must be denied as moot.

Based upon the foregoing it is

ORDERED, that Defendant's motion for dismissal of the claim is granted. The Clerk of the Court is directed to close the file. Claimant's motion for judicial subpoenas is denied as moot.

October 15, 2004
Rochester, New York

Judge of the Court of Claims