New York State Court of Claims

New York State Court of Claims

KELLEY v. THE STATE OF NEW YORK, #2004-032-041, Claim No. 108618, Motion Nos. M-68105, M-68138


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-68105, M-68138
Cross-motion number(s):

Claimant's attorney:
Thomas E. Kelley, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michael C. Rizzo, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 14, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This claim was filed with the Court on December 8, 2003. If claimant had served a copy of the claim on the Attorney General at approximately the same time (Court of Claims Act §11[a]), an answer would have been due within forty days, or on or about January 17, 2004.

In early March, when the Court became aware that no answer had been filed, an Order to Show Cause was issued, directing both parties to submit a written statement "relating to service of this claim." Claimant was invited to provide an affidavit establishing personal service or a copy of the certified mail, return receipt in order to evidence proper service; defendant was invited to provide a statement of someone with personal knowledge of the contents of the files and records of the Department of Law. Both parties agree that the claim was properly served, by personal service. The State's answer had not been filed before January 17, 2004, because claimant did not serve a copy of the claim on defendant until January 26, 2004. The State, therefore, actually had until March 9, 2004 to file and serve its answer or to bring a pre-answer motion.

In this case, defendant chose to move for dismissal of the claim in lieu of serving an answer, and one of the asserted grounds for dismissal is that the claim is untimely. The incident giving rise to the claim occurred on September 14, 2003. At approximately 7:30 P.M., claimant called 911 to report a domestic disturbance in which he had been physically injured by his wife. Claimant asserts the State Police trooper who responded to the call "did not properly investigate the incident and did not charge my wife with any crimes." Claimant also challenges the trooper's failure to listen to an entire microcassette, which he states would have contradicted the account his wife had given, and his asserted lack of professionalism in interviewing claimant's young son. "If the Trooper had investigated the incident in a proper manner," claimant states, "my wife should have been arrested for assault, endangering the welfare of a child and falsifying a police report."

As noted above the claim in this action was filed on December 8, 2003, which is approximately 85 days after September 14, 2003 and thus within the time limitation set forth by section 10(3) of the Court of Claims Act. Service of the claim did not occur until January 26, 2004, more than ninety days after the accrual of the cause of action. Section 11(a) of the Court of Claims Act requires that the claim be filed and served within the applicable time limitation found in the subdivisions of section 10. Consequently, this claim was not initiated in a timely fashion.

In his response to defendant's motion, claimant states that he would have served the claim in a timely fashion if he had known how to do so, and he asks the Court to allow him the opportunity to continue with his claim. Unfortunately, this is not possible. Failure to comply with the time and manner of service requirements contained in sections 10 and 11 of the Court of Claims Act is a fatal jurisdictional defect and deprives this Court of the power to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Bogel v State of New York, 175 AD2d 493 [3d Dept 1991]).

Motion No. M-68105 is closed with no action being taken, because claimant had properly served the State. Motion No. M-68138 is granted, and Claim No. 108618 is dismissed, because that service was untimely.

June 14, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on an Order to Show Cause issued by the Court (Motion No. M-68105) and on defendant's motion for an order of dismissal (Motion No. M-68138).
1. Order to Show Cause, issued March 2, 2004

2. Notice of Motion and Supporting Affidavit of Michael C. Rizzo, Esq., AAG, with annexed exhibit.

3. Letter Reply of Thomas E. Kelley, pro se

Filed papers: Claim; Affidavit of Service