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), 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.
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
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.