New York State Court of Claims

New York State Court of Claims

POE v. STATE OF NEW YORK, #2005-018-462, Claim No. 108694, Motion No. M-69366


Synopsis



Case Information

UID:
2005-018-462
Claimant(s):
DAVID ALLEN POE
Claimant short name:
POE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108694
Motion number(s):
M-69366
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
David Allen PoePro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 29, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings a motion to dismiss the claim pursuant to CPLR 3211(a)(8). Claimant

has submitted no opposition to the motion.

An unverified notice of intention was served by certified mail, return receipt requested, on the Attorney General on January 24, 2003. A verified claim was filed with the Clerk of this Court on December 29, 2003, and served upon the Attorney General by certified mail, return receipt requested, on February 2, 2004. A copy of the envelopes for both the notice of intention and the claim, bearing the appropriate post-mark dates and the date stamp reflecting when each was received in the Attorney General's Office, have been attached to Defendant's motion papers. The claim sets forth a cause of action for an assault upon Claimant by a correction officer on December 2, 2002, at Ogdensburg Correctional Facility. Pursuant to Court of Claims Act § 3-b, a claim seeking to recover damages for personal injuries, caused by the intentional tort of an employee or officer of the State must be filed and served with 90 days of the date of accrual unless a notice of intention is served upon the Attorney General within such time, in which case the claim must be served and filed within one year of the date of accrual. A timely and properly served notice of intention was served upon the Attorney General; however, the claim was not filed and served within one year of December 2, 2002. Pursuant to Court of Claims Act § 11(c), it is incumbent upon the Defendant to raise the issue of untimeliness with particularity by pre-answer motion or as an affirmative defense. In this instance the Assistant Attorney General failed to properly particularize the reason this claim is untimely, and therefore, the defense is waived (see Sinacore v State of New York, 176 Misc 2d 1).

The State seeks dismissal for failure to comply with the statute of limitations, CPLR § 215(3) which also requires an action based on an assault to be commenced within one year of its accrual. It has been held in Firth v State of New York, 184 Misc 2d 105, affd 287 AD2d 771, affd 98 NY2d 365, that a Claimant must comply with both the Court of Claims Act and the CPLR time limits. Since the claim was not filed and served within one year of December 2, 2002, it is untimely and is hereby DISMISSED.


March 29, 2005
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


Notice of Motion.................................................................................................1


Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney General,

in support, with exhibits attached thereto...................................................2


No response was received from Claimant.