The State has moved to dismiss the claim of Val Bonnette on the ground that his
notice of intention was untimely served for the purposes of the Court of Claims
Act (the "Act"). In his claim, Mr. Bonnette alleges that because of defendant's
negligence, he was injured on April 8, 2004, when he had a "head-to-head
collision" with another inmate in the gym at Mid-Orange Correctional Facility.
He also complains of the medical care he received that day following the
incident. Section 10.3 of the Act provides that a claim such as this must be
filed within 90 days of accrual, in this case, within 90 days of April 8, 2004,
i.e., by July 7, 2004. Such section provides that in the alternative, a
notice of intention may be served within such 90 days, and then a claim filed
and served within two years of accrual.
Defendant submits a copy of claimant's notice of intention, with a date stamp
indicating that it was served on July 8, 2004, 91 days after accrual. Other
than to say there remains a question as to when the claim was received, claimant
does not substantively dispute the July 8th receipt date, e.g., by
submitting a copy of his certified mail return receipt.
"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 Bonnette's claim by virtue of his
failure to timely serve his notice of intention. For the foregoing reasons,
having reviewed the parties' submissions
IS ORDERED that motion no. M-70090 be granted and claim no. 110742 be