New York State Court of Claims

New York State Court of Claims

LAROCCO v. THE STATE OF NEW YORK, #2005-009-042, Claim No. 110553, Motion No. M-69993


Synopsis


Defendant's motion to dismiss the claim for untimely service was granted.

Case Information

UID:
2005-009-042
Claimant(s):
DOMINICK LAROCCO
Claimant short name:
LAROCCO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110553
Motion number(s):
M-69993
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
DOMINICK LAROCCO, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
August 29, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking an order dismissing the claim.

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

In this motion, defendant contends that the claim was not timely served upon the Attorney General and therefore should be dismissed. As set forth in the Affirmation of defendant's counsel (see Item 2), the Attorney General received this claim on February 24, 2005 (see Exhibit A to Items 1,2). Defendant's attorney acknowledges that this claim was mailed by certified mail, return receipt requested (see Exhibit B to Items 1,2).

In his claim, claimant, while incarcerated at Mid-State Correctional Facility, alleges that he was subjected to verbal harassment, slander, defamation, mental and emotional cruelty, and intentional infliction of mental and emotional distress, when he was required to retake a "TABE Test" on November 4, 2003. Claimant also alleges that certain of his State constitutional rights were also violated during this incident. According to his claim, claimant passed the required test on October 2, 2003, but an instructor accused claimant of cheating on this test, and he was forced by the instructor to retake that test on November 4, 2003.

Pursuant to Court of Claims Act § 10(3) (which governs unintentional torts), and § 10(3-b) (which governs intentional torts), a claim must be served upon the Attorney General and filed with the Clerk of the Court of Claims within 90 days from the date of accrual, unless within such time period a written notice of intention to file a claim is served upon the Attorney General. If a written notice of intention is so served, a claimant then must file and serve his claim within two years after accrual for unintentional torts (§ 10[3]), or within one year after accrual for intentional torts (§ 10[3-b]).

In this motion, defendant's attorney affirms that claimant did not serve any notice of intention to file a claim (see par. 9 to Item 2). Claimant has not responded to this motion, and therefore has not submitted any documentation whatsoever to indicate that a notice of intention was timely and properly served upon the Attorney General.[1] This Court therefore concludes that a notice of intention was not served upon the Attorney General within 90 days from the date of accrual of this claim. Claimant therefore is not entitled to the benefit of the extension of time for the service and filing of a claim permitted by service of a notice of intention pursuant to § 10(3) and § 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.

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 claim must be dismissed.

Accordingly, it is

ORDERED, that Motion No. M-69993 is hereby GRANTED; and it is further

ORDERED, that Claim No. 110553 is hereby DISMISSED.


August 29, 2005
Syracuse, New York

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




[1] In his claim, claimant alleges that a notice of intention was served upon the Attorney General on February 20, 2004. No such proof of service, however, was submitted with the claim and, as stated above, claimant did not submit any response to this motion, and he therefore has failed to submit any proof to support his contention that a notice of intention was served in this claim.