New York State Court of Claims

New York State Court of Claims

TOMON v. THE STATE OF NEW YORK, #2005-009-003, Claim No. 109890, Motion No. M-69298


Synopsis


Defendant's motion to dismiss the claim based upon untimely service of the notice of intention and the claim was granted.

Case Information

UID:
2005-009-003
Claimant(s):
WALTER TOMON
Claimant short name:
TOMON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109890
Motion number(s):
M-69298
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
WALTER TOMON, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
February 1, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has brought this pre-answer motion to dismiss the claim based upon untimely service of both the notice of intention to file a claim and the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2

The Court notes that claimant has not submitted any papers, nor has he contacted the Court in any manner whatsoever, in opposition to this motion.

In his claim, which was filed September 24, 2004, claimant alleges that he was assaulted by a correction officer on July 1, 2003, when he was incarcerated at Oneida Correctional Facility.

A claim seeking to recover for personal injuries caused by intentional torts committed by an officer or an employee of the State must be served upon the Attorney General, and filed with the Clerk of the Court of Claims, within 90 days of accrual, unless a notice of intention to file a claim is served upon the Attorney General within such 90 days (Court of Claims Act § 10[3-b]). If a notice of intention is so served, such a claim must then be served and filed within one year after its accrual date.

In this particular matter, defendant acknowledges that a notice of intention to file a claim, postmarked October 15, 2003, was received by the Attorney General's office on October 20, 2003 (see Exhibit A to Items 1,2). Defendant further acknowledges that the claim was subsequently served upon the Attorney General on September 24, 2004.

With regard to the service of the notice of intention to file a claim, defendant has submitted satisfactory proof establishing that this notice of intention to file a claim was not served within 90 days of accrual, as required by § 10(3-b) of the Court of Claims Act. Since the notice of intention was not timely served, claimant therefore did not receive the benefit of the extension of time for service and filing of his claim as provided by § 10(3-b). As a result, the claim, which was clearly not served and filed within 90 days from the date of accrual, is untimely.[1]

The provisions of the Court of Claims Act relating to the time and manner of service and filing are jurisdictional prerequisites to the maintenance of a claim, and as such must be strictly construed (Greenspan Bros. v State of New York, 122 AD2d 249). As a result, this Court does not have the authority to cure or overlook defects in the time and/or manner of service and filing, assuming that such defenses are properly raised by the defendant either in its responsive pleading, or by a motion to dismiss made prior to service of said responsive pleading, as required by Court of Claims Act §11(c). This claim must therefore be dismissed.

Based on the foregoing, it is

ORDERED, that Motion No. M-69298 is hereby GRANTED; and it is further

ORDERED, that Claim No. 109890 is hereby DISMISSED.


February 1, 2005
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1] The Court notes that even if claimant had timely served a notice of intention upon the Attorney General, the claim was not served or filed within one year from the date of accrual as required by § 10-3(b).