New York State Court of Claims

New York State Court of Claims

CHRISTIE v. STATE OF NEW YORK and PAROLE OFFICER GLEN JOHNSON, #2005-016-004, Claim No. 109806, Motion No. M-69241


Claim was dismissed as it was untimely served.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Alan C. Marin
Claimant's attorney:
Lonuzzi & Woodland, LLPBy: John Lonuzzi, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Esq., AAG
Third-party defendant's attorney:

Signature date:
January 28, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the State of New York's[1] motion to dismiss the claim of Eugene Christie on the ground that it was untimely served for the purposes of the Court of Claims Act (the "Act").[2] The claim alleges that on June 9, 2004, Mr. Christie was "harassed, threatened, detained, arrested and incarcerated" by Parole Officer Glen Johnson. Whether Christie's claim is construed as one for unintentional or intentional tort, §10 of the Court of Claims Act requires that it be served within 90 days of accrual. In fact, the claim was served on defendant on September 8, 2004[3], which is 91 days after the accrual date of June 9, 2004.

"It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and accordingly, must be strictly construed . . ." Byrne v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted). See also Mallory v State of New York, 196 AD2d 925, 601 NYS2d 972 (3d Dept 1993), in which a notice of intention served on the 91st day was found untimely for jurisdictional purposes, and Reinmuth v State of New York, 65 AD2d 648, 409 NYS2d 455 (3d Dept 1978), in which the claim was found untimely where it was served 92 days after accrual.

In sum, this Court lacks jurisdiction over Christie's claim by virtue of his failure to timely serve it. Although claimant's opposition papers refer to the six factors set forth in §10.6 of the Act, he has thus far made no motion for permission to file a late claim pursuant to such section. For the foregoing reasons, having reviewed the parties' submissions[4], IT IS ORDERED that motion no. M-69241 be granted and claim no. 109806 be dismissed.

January 28, 2005
New York, New York

Judge of the Court of Claims

  1. [1]The State of New York is the sole proper defendant in this case; the Court of Claims has no jurisdiction over Parole Officer Glen Johnson.
  2. [2]Claimant argues that the motion is a "legal nullity" because defendant served it on October 14, 2004 and made it returnable only six days later, on October 20, 2004, in violation of CPLR §2214. While defendant's papers make reference to an October 20, 2004 return date, the motion was in fact assigned a return date of November 17, 2004 by the Clerk's Office. In addition, claimant sought and obtained, on consent from defendant, a two-month adjournment to January 19, 2005. In view of the foregoing, I find the motion to be properly before the Court.
[3] Defendant submits a date stamped copy of the claim indicating that the claim was received on September 9, 2004, but claimant submits a more reliable indication of service - - a copy of his certified mail, return receipt card, which shows that the claim was delivered on September 8, 2004. In any event, as set forth more fully herein, it does not matter whether the claim was served on September 8th or 9th, as both days are beyond the statutory 90-day period for service.
  1. [4]The following were reviewed: defendant's notice of motion with affirmation in support and exhibit A; and claimant's affirmation in opposition with affidavit of meritorious claim and exhibits A-C.