New York State Court of Claims

New York State Court of Claims

MAXSON v. THE STATE OF NEW YORK, #2005-032-033, Claim No. 109336, Motion No. M-68603


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):

Claimant's attorney:
Korey M. Maxson, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michael C. Rizzo, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
March 31, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves this Court for an order pursuant to CPLR 3211 dismissing the claim for lack of subject matter and personal jurisdiction.

In May 2004, claimant, an inmate housed at Adirondack Correctional Facility, filed a claim wherein he alleges that on April 24, 2003, he fell while showering at this facility and sustained personal injuries. The claim also states that he served a notice of intention to file a claim on July 21, 2003. Claimant's affidavit of service which accompanied his claim states that the claim was served via mail on April 24, 2004. Defendant now moves for summary judgment contending that the action is untimely inasmuch as the Attorney General did not receive the notice of intention until September 17, 2003, and the claim was not received until May 10, 2004.

It is well-settled that in an action to recover for personal injuries against the State, the failure to serve either a notice of intention or a claim within 90 days of the accrual of the claim is a fatal jurisdictional defect (see, Conner v State of New York, 268 AD2d 706, 707 [3d Dept 2000]; Court of Claims Act 10 [3][b]). Here, the time period within which claimant could serve an action ended 90 days after April 24, 2003 or July 23, 2003. Although claimant's affidavit of service accompanying his notice of intention indicates service by this date, claimant admits in his opposition papers that his claim is untimely. He argues, however, that his failure to timely serve was due to prison obstacles. Specifically, claimant avers that on July 12, 2003, he filed a library request for photocopies of his notice of intention. When his request was returned uncopied, he wrote out the requisite number of copies and submitted them to the prison mail depository for postage. Claimant states his mail was erroneously returned to him for insufficient funds in his prison account. Thereafter, in August 2003, claimant states that he again requested copies from the law library and again his materials were returned. Ultimately, claimant had family members serve his papers.

Initially, the Court discerns no prejudice to claimant with respect to denial of his library request for copies inasmuch as he completed the requisite copies of his documents and does not indicate what delay this caused him. Next, although 7 NYCRR 721.3 provides that the cost of postage for legal mail will be advanced by the facility, claimant fails to submit any documentation that he submitted an advance request and that he was eligible to receive an advance (7 NYCRR 721.3 [3][iv]). Moreover, even if he had provided this documentation, claimant's notice of intention would not be deemed timely simply because it was delivered to prison officials in advance of the 90-day time period inasmuch as New York has not adopted a "mailbox rule" that would deem the notice served when it was placed under the control of prison officials (see CCA 11(a)(ii) Matter of James v Goord, 281 AD2d 825, 826 [3d Dept 2001], lv denied 96 NY2d 721 [2001]; Espinal v State of New York, 159 Misc.2d 1051 [1993]). Given that claimant failed to timely serve either a notice of intention or claim, defendant's motion to dismiss is granted and the claim is dismissed.

March 31, 2005
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion filed June 9, 2004;

2. Affidavit of Michael C. Rizzo sworn to June 7, 2004; exhibits A-B annexed;

3. Affidavit of Carol A. McKay sworn to June 7, 2004;

4. Claimant's Opposition filed September 3, 2004; unnumbered exhibits annexed;

5. Claim