New York State Court of Claims

New York State Court of Claims
JENKINS v. STATE OF NEW YORK, #2005-013-015, Claim No. 106790, Motion No. M-69681

Case Information


1The Court has amended the caption sua sponte to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has amended the caption sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April , 2005

Official citation:

Appellate results:
AFFIRMED 35 AD3D 1262 4TH DEPT 2006
See also (multicaptioned case)


On March 16, 2005, the following papers were read on motion by Defendant for dismissal of the claim:
Notice of Motion, Affirmation and Exhibits Annexed
Opposing Affirmation

Filed Papers: Claim; Answer; Amended Answer

Upon the foregoing papers, this motion is granted.
On October 15, 2002 Claimant filed Claim No. 106790 alleging that his claim arose on October 13, 2000 at approximately 11:00 a.m. at the Attica Correctional Facility in the Vocational Shop II where the Claimant was struck in the eye by a wooden projectile thrown by Correction Officer Danitz. A note of issue was filed on January 3, 2005.
The Defendant now moves for summary judgment dismissing the claim on a variety of grounds, most notably the untimely filing of the claim herein more than two years after its accrual, and a variety of other alleged jurisdictional infirmities.
A brief recitation of the procedural history here will lend some light on these issues. First, Claimant, appearing pro se, served a notice of intention to file a claim, with a verification, upon the Defendant on November 13, 2000. Thereafter, Claimant was represented by counsel and some two claims were served, in a fashion, upon the Defendant, raising several jurisdictional issues and defenses. But the simple thrust of the instant motion is that since no claim was filed with the Clerk of the Court until October 15, 2002, more than two years after the accrual of the underlying cause of action, the Defendant contends that the claim is untimely filed, even if the notice of intention served to extend Claimant’s time to serve and file his claim.
Defendant acknowledges and advises the Court that it was served with three claims herein. Utilizing the Defendant’s characterization of each, I will simply review them seriatim. Defendant acknowledges that it was properly served on January 29, 2001 with a “notice of claim for damages” dated November 14, 2000, but that it rejected the same because it had no verification. Defendant then asserts that on March 21, 2001, Claimant “re-served” the same “notice of claim for damages” dated November 14, 2000, presumably containing a verification, but service this time was accomplished by regular mail.
The instant “notice of claim for damages,” dated October 5, 2002, was served upon the Defendant on October 10, 2002, albeit also by regular mail.

In the Defendant’s seventh affirmative defense of its amended answer, dated November 14, 2002, it clearly and with particularity alleges that the claim was not filed within two years of its accrual, as required by Court of Claims Act §10(3). I thus find that the Defendant has preserved and not waived the defense of untimely filing with sufficient particularity to meet the requirements of Court of Claims Act §11(c).
Part of the reason that I recited the litany of “served” claims relates to the possible waiver of defenses alleging untimeliness or raising manner of service issues (the requirements of Court of Claims Act §11[c]). Here, since the State filed an amended answer, I contemplated whether the amendment to or the original answer might have raised such jurisdictional issues after expiration of the original 40-day period for filing the answer (see Harris v State of New York, 190 Misc 2d 463). On March 22, 2001, the State served its answer to the claim served upon it on January 29, 2001.
The Clerk of the Court accepted the State’s answer on March 26, 2001, but in a letter dated March 28, 2001, notified the parties that “no Claim has been filed in this office.”
Rather than engage in a lengthy discussion of the sufficiency of the notice of intention and claims in their description of the place where the claim accrued, or the possible argument relative to the timeliness or affirmative defenses objecting to the timeliness or manner of service of the various claims herein, my decision will be based on the sole ground of the untimeliness of the filing of the claim herein, an issue which was timely raised in the amended answer as the seventh affirmative defense.
Claimant’s opposition to the relief sought addresses other grounds raised by the Defendant, to wit, whether the notice of intention or claim satisfied the requirement of Court of Claims Act §11(b) to state “the place where such claim arose,” noting service of “another Verified Notice of Claim” on March 21, 2001, and asserts compliance with the requirements of Court of Claims Act §11. However, at no time does Claimant even acknowledge, let alone address, the motion as it pertains to untimely filing.
Addressing the substance of the motion, I note first that even though Claim No. 106790 is dated October 5, 2002, it was not filed by the Clerk until October 15, 2002. Moreover, the Court’s file reveals a fax cover sheet reciting that the claim and notice of claims were being filed, and containing the credit card authorization for the $50.00 filing fee signed by Claimant’s counsel. The fax cover sheet submitted by Claimant’s counsel is dated October 15, 2002.

Thus, despite the fact that the answer and amended answer raised as affirmative defenses allegations of service by regular mail rather than the statutorily mandated personal service or certified mail, return receipt requested (Court of Claims Act §11[a][i]), the amended answer also raised the untimely filing of the claim as required by Court of Claims Act §10(3). Lest there be any question, just like service of the claim, which is not complete until it is received by the Attorney General (Court of Claims Act §11[a][i]), filing too is not complete until receipt by the Clerk (“‘it is the receipt... by the clerk in Albany which determines’ the timeliness of filing regardless of the date of mailing [citations omitted]” (Byrne v State of New York, 104 AD2d 782, 784, lv denied 64 NY2d 607).
Here there is no doubt that the claim was not filed within two years of its accrual, in derogation of Court of Claims Act §10(3), and there is no question that the Claimant was placed on timely notice of said untimeliness, and never sought remedial relief pursuant to Court of Claims Act §10(6). Accordingly, since the claim was untimely filed, the motion is granted and the claim is dismissed. It is not necessary for me to rule upon the other grounds for dismissal raised by the Defendant.

April , 2005
Rochester, New York

Judge of the Court of Claims

  1. [2]See Exhibit 2 to the moving papers containing a copy of the envelope showing 34 cents of postage and no marking indicative of certified mail (Court of Claims Act §11[a][i]).
  2. [3]See Exhibit 3 to the moving papers containing a copy of the envelope showing 60 cents of postage and no marking indicative of certified mail (Court of Claim Act §11[a][i]).
  3. [4]That answer, inter alia, raised as an affirmative defense the service of the claim by regular mail, and not certified mail, return receipt requested, as required by Court of Claims Act §11(a).
  4. [5]The claim accrued on October 13, 2000.