New York State Court of Claims

New York State Court of Claims

LEAKEY v. THE STATE OF NEW YORK, #2005-030-564, Claim No. 111177, Motion No. M-70924


Synopsis



Case Information

UID:
2005-030-564
Claimant(s):
RONNIE LEAKEY
Claimant short name:
LEAKEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111177
Motion number(s):
M-70924
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
RONNIE LEAKEY, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: MARY B. KAVANEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
December 22, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 3 were read and considered on Defendant's pre-


answer motion to dismiss the claim:

1,2 Notice of Motion, Affirmation by Mary B. Kavaney, Assistant Attorney General, and attachment

  1. Filed Papers: Claim
No Opposition

After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

Ronnie Leakey, the Claimant herein, alleges in Claim Number 111177 that Defendant's agents failed to protect him from an assault by fellow inmates on May 28, 2005 while he was incarcerated at Downstate Correctional Facility. [See Claim Number 111177, ¶ 2].

A notice of intention to file a claim and the claim itself were served upon the office of the Attorney General, on October 12, 2005. According to the file-stamped copy of the claim, the claim and the attached notice of intention were filed in the Office of the Chief Clerk of the Court of Claims on July 25, 2005.

The Defendant moves to dismiss based upon a failure to timely serve the Defendant with either a notice of intention to file a claim or the claim within ninety (90) days of accrual as required. Court of Claims Act §§10 and 11. The claim accrued on May 28, 2005 and was served on the Attorney General's Office on October 12, 2005: more than ninety (90) days after the accrual date. Court of Claims Act §10(3). No notice of intention was served previously upon the Attorney General to toll the period. [See id.].

The affirmative defense has been raised with sufficient particularity in a pre-answer motion as required by Court of Claims Act §11(c), and the cases decided thereunder. See Knight v State of New York, 177 Misc 2d 181 (Ct Cl 1998).

Because the applicable statute provides ". . . [n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim . . ." [Court of Claims Act §10], the provisions concerning service and filing have been strictly construed. See e.g. Welch v State of New York, 286 AD2d 496, 729 NYS2d 527, 529 (2d Dept 2001); Conner v State of New York, 268 AD2d 706, 707 (3d Dept 2000).

Accordingly, Defendant's motion to dismiss based upon a failure to serve either a notice of intention to file a claim or the claim, or to file the claim within the time period required, is

hereby granted, and Claim Number 111177 is dismissed in its entirety.

December 22, 2005
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims