New York State Court of Claims

New York State Court of Claims

BOLDEN, et al. V. THE STATE OF NEW YORK, #2005-019-512, Claim No. 109755, Motion No. M-69648


Synopsis


In lieu of an answer, the State moves to dismiss because claimants failed to timely serve and file their claim; claim dismissed.

Case Information

UID:
2005-019-512
Claimant(s):
PATRICIA BOLDEN, JAMES BOLDEN, CIERRA KERR, and YANNELL MILLER
Claimant short name:
BOLDEN, et al.
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109755
Motion number(s):
M-69648
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
LAW OFFICES OF AMBROSE WOTORSON, P.C.BY: Ambrose W. Wotorson, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 7, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

In lieu of an answer, the State of New York (hereinafter "State") moves to dismiss this claim for lack of jurisdiction due to claimants' failure to timely file and serve this claim pursuant to Court of Claims Act (hereinafter "CCA") § 10. The court has not received any papers in opposition from or on behalf of claimants.

This claim alleges that on August 25, 2001, unnamed State employees (presumably State troopers), acting jointly with law enforcement officers from the County of Sullivan and Village of Monticello, executed a search warrant on an apartment in which claimants were residing located in Monticello, New York. The claim alleges, among other things, that claimants were assaulted, strip-searched and subjected to racial remarks during the execution of the search warrant. The claim is pled in terms of violations of the United States Constitution pursuant to 42 U.S.C. § 1983. This claim was filed with the Clerk of the Court on August 23, 2004 and served on the Office of the Attorney General by certified mail, return receipt requested, on December 24, 2004.


The State's motion to dismiss alleges that this claim was filed and served beyond the ninety-day period set forth in CCA § 10 (3-b). More specifically, CCA § 10 (3-b) states that an action to recover for personal injuries based on the intentional tort of a State employee must be filed and served within ninety days from accrual, unless a notice of intention to file a claim is served upon the attorney general within ninety days. There is no evidence that a notice of intention was ever served in this case.


It is a fundamental principle of practice in the Court of Claims that the filing and service requirements are jurisdictional in nature and must be strictly construed. (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). This claim accrued on August 25, 2001. However, this claim was not filed and served until August 23, 2004 and December 24, 2004, respectively, both of which are well beyond the allowable ninety-day statutory time period to do so. As such, the court lacks jurisdiction over this claim. The court cannot make provision for claimants to seek permission to file a late claim since the statutory period to do so, which would have been one year from the date of accrual, has long since expired. (CCA 10 [6]; CPLR 215).


Accordingly, for the reasons stated above, it is ORDERED that the State's motion to dismiss, Motion No. M-69648, is GRANTED; and Claim No. 109755 is DISMISSED.


March 7, 2005
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with this motion:

  1. Claim, filed August 23, 2004.
  2. Notice of Motion No. M-69648, dated January 18, 2005, and filed January 20, 2005.
  3. Affirmation of Carol A. Cocchiola, AAG, in support of motion, dated January 18, 2005, with attached exhibits.