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
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.