New York State Court of Claims

New York State Court of Claims

BOLEY v. THE STATE OF NEW YORK, #2005-015-044, Claim No. 110875-A, Motion Nos. M-70316, M-70496


Synopsis


Court lacked jurisdiction over claim which was not filed and served within 90 days of accrual. Claim dismissed rendering cross-motion academic.

Case Information

UID:
2005-015-044
Claimant(s):
ANTHONY BOLEY
Claimant short name:
BOLEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110875-A
Motion number(s):
M-70316, M-70496
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Anthony Boley, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Arnold, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 12, 2005
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant's motion to dismiss the claim due to claimant's failure to serve upon the Attorney General either a notice of intention or a claim within 90 days of the claim's accrual as required by Court of Claims Act § 10 (3) is granted. Dismissal of the claim renders academic claimant's motion seeking the assignment of an attorney to prosecute the claim and claimant's motion is therefore denied. The claim filed on May 11, 2005 and served upon the Attorney General on May 13, 2005 alleges that on November 22, 2004 claimant was struck by a tear gas cannister which was negligently dropped from the ceiling of the mess hall at Great Meadow Correctional Facility, Comstock, New York, releasing its contents and exposing claimant to noxious fumes causing injury.

The defendant asserts on this pre-answer motion that the claimant failed to serve a notice of intention or a claim within 90 days of the claim's accrual on November 22, 2004 as required by Court of Claims Act § 10 (3). Claimant served a notice of intention upon the Attorney General concerning the above occurrence on February 24, 2005 (defendant's Exhibit A). Defense counsel has properly calculated that the last day to effectuate service of either a notice of intention or claim pursuant to section 10 (3) was February 20, 2005. Claimant's service of a notice of intention upon the Attorney General on February 24, 2005 was therefore untimely (see defendant's Exhibit A) as was the service and filing of the claim in May, 2005. The defendant's motion was unopposed.

The service and filing requirements of the Court of Claims Act are jurisdictional in nature and "failure to timely serve the Attorney General in strict compliance with Court of Claims Act § 10 (3) gives rise to a jurisdictional defect (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723; Dreger v New York State Thruway Auth., 177 AD2d 762, 763, affd 81 NY2d 721; Suarez v State of New York, 193 AD2d 1037, 1038)" (Brown v New York State Board of Parole, Ct Cl, December 20, 2002 [Claim No. 106427, Motion Nos. M-65765, M-65827, UID # 2002-028-071] Sise, J.[1]).

Claimant failed to serve either the notice of intention or claim within 90 days of accrual as required by Court of Claims Act § 10 (3). The defendant properly raised the defense of untimeliness in its pre-answer motion (see Court of Claims Act § 11 [c]). Defendant's motion is therefore granted and the claimant's motion for the assignment of an attorney is denied as moot.


October 12, 2005
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:

Motion No. M-70496:
  1. Notice of motion dated May, 2005;
  2. Affidavit of Anthony Boley sworn to May 1, 2005;

Motion No. M-70316:

  1. Notice of motion dated June 22, 2005;
  2. Affirmation of Kathleen M. Arnold dated June 22, 2005 with exhibits.

[1].Unreported decisions from the Court of Claims are available via the internet at http://www.nyscourtofclaims.state.ny.us./decision.htm.