New York State Court of Claims

New York State Court of Claims

FULLER v. THE STATE OF NEW YORK, #2004-034-548, Claim No. 108198, Motion No. M-68064


Synopsis


Defendant's motion to dismiss is granted for failure to timely serve.

Case Information

UID:
2004-034-548
Claimant(s):
JAMES J. FULLER
Claimant short name:
FULLER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108198
Motion number(s):
M-68064
Cross-motion number(s):

Judge:
MICHAEL E. HUDSON
Claimant's attorney:
JAMES J. FULLER, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: PAUL VOLCYAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 18, 2004
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has filed this motion to dismiss the Claim on several grounds, including untimeliness pursuant to Court of Claims Act § 10 (3). The Court hereby grants the motion on that basis, noting the absence of any opposition to the relief now sought.

The Court has considered the following papers in connection with this motion:
1. Claim, verified August 25, 2003, filed August 27, 2003;
2. Answer, with attached exhibit, dated October 3, 2003, filed October 7, 2003;
3. Defendant's Notice of Motion dated February 17, 2004, filed February 20, 2004;

4. Affirmation of Paul Volcy, Esq., dated February 17, 2004, with attached exhibits.

Claimant filed this Claim on August 27, 2003, alleging that on October 13, 2000, the Division of Parole seized various items of his personal property, and repeatedly refused his demands for its return. He contends that the most recent refusal occurred on June 11, 2003, and it appears Claimant has taken the position that a right to recovery can arise with each demand for the return of the items seized. For the reasons that follow, the Court must reject what would serve as the only arguable ground for deeming his Claim timely commenced.

Court of Claims Act § 10 (3) requires that a claim be filed and served within ninety days of accrual. That requirement is strictly construed and the failure to comply with that section is a jurisdictional defect which compels dismissal (see Welch v State of New York, 286 AD2d 496 [2001]; Alston v State of New York, 281 AD2d 741 [2001]).

In an action to recover chattel that is wrongfully taken, as is alleged here, the cause of action accrues on the date of the initial taking, not the date of any subsequent demand for its return (see Funding Assistance Corp. v Mashreq Bank PSC, 277 AD2d 127, 128 [2000]). Claimant's cause of action thus accrued on October 13, 2000, more than 90 days prior to the filing of his Claim, and is now time-barred. The Court notes that even if it were to consider this Claim as one for bailment, accrual would have occurred when the right to demand the return of the property became complete, and not with each subsequent demand Claimant chose to make (see generally CPLR 206 [a]; Berman v Goldsmith, 141 AD2d 487 [1988]; Wright v State of New York, 195 Misc 2d 597, 599 [2003]). Moreover, the Claimant has failed to allege the date of the original demand and thus the Claim is jurisdictionally defective (Lepkowski v State of New York, 1 NY3d 201 [2003]).

Based upon the above, it is

ORDERED, that Defendant's motion is granted and the Claim is dismissed. The Clerk is hereby directed to close the file.

June 18, 2004
Buffalo, New York

HON. MICHAEL E. HUDSON
Judge of the Court of Claims