New York State Court of Claims

New York State Court of Claims

JONES v. THE STATE OF NEW YORK, #2006-015-074, Claim No. 111461, Motion Nos. M-70904, CM-71021


Synopsis


Claim filed on October 5, 2005 dismissed as untimely based upon an alleged accrual of April 1985, the purported date on which the NYPD and State Police began to electronically eavesdrop on Queen Esther Jones.

Case Information

UID:
2006-015-074
Claimant(s):
QUEEN ESTHER JONES
1 1.By order dated January 10, 2006 the Court sua sponte amended the caption to delete unnecessary parties and those over which this Court has no jurisdiction.
Claimant short name:
JONES
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
By order dated January 10, 2006 the Court sua sponte amended the caption to delete unnecessary parties and those over which this Court has no jurisdiction.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111461
Motion number(s):
M-70904
Cross-motion number(s):
CM-71021
Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Queen Esther Jones, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Ellen Matowik, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 27, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant's pre-answer motion to dismiss the claim for lack of jurisdiction is granted. Claimant's cross-motion for an order striking the defendant's defenses and granting summary judgment is denied. Paragraph (1) of the claim filed on October 5, 2005 in relevant part alleges "[t]he claim arosed [sic] on or about April of 1985, against the City and State of New York through the negligence and careless operation of their emergency radio, for the City and State Police (Intelligence) Department and Division, their law enforcement officers, emergency radio operators, providers of internet, satellite and telecommunications services, their employees, agents, agencies responsible for maintaining and compiling information and data for an electronic and manual record." The claim asserts further that records pertaining to the claimant are kept under a cloak of secrecy or confidentiality pursuant to "Public Officers Law, Section Personal Privacy Law Section 95" and that the failure to disclose such records violates her legal rights under the "Public Officers Law Section, Freedom of Information Law Section 84."

In addition to the alleged non-disclosure described above the claim also alleges that the defendants negligently and carelessly disclosed information concerning the claimant to the general public. Finally, the claim asserts that by withholding information from the claimant but making it available to the public the defendants have breached their duties under "the Common laws of the State Constitution, and under Public Officers Laws, Freedom of Information Law, Section 84, Public Officers Law, Section Personal Privacy Law Section 96, State Technology Law Section Electronic Record 108, Internet Privacy Act 201-207 (Personal Privacy Protection Law) (Internet Security & Privacy Act)." Claimant seeks unspecified damages as set forth in an attached schedule.

Defendant has moved to dismiss the claim as untimely and claimant cross-moved to strike the defenses set forth in the answer and for summary judgment.

The time requirements set forth in section 10 of the Court of Claims Act are more than Statutes of Limitation. Indeed, they have been found to be conditions precedent to the commencement and maintenance of a claim against the State and are to be strictly construed (Pelnick v State of New York, 171 AD2d 734). The Court of Appeals has held that the limitations contained in Article II of the Court of Claims Act represent an integral part of the waiver of immunity, the failure to comply with which deprives this Court of jurisdiction to entertain the claim (Lichtenstein v State of New York, 93 NY2d 911, Dreger v New York State Thruway Auth., 81 NY2d 721).

Absent proper service of a notice of intention to file a claim upon the Attorney General a claimant is required to serve and file a claim for negligence within 90 days of the claim's accrual pursuant to Court of Claims Act § 10 (3). Failure to file a claim within the time permitted in section 10 (3) of the Act is a fatal jurisdictional defect requiring dismissal of a claim (Philippe v State of New York, 248 AD2d 827; Collado v State of New York, 207 AD2d 936).

Although a defense based upon untimeliness may be waived pursuant to Court of Claims Act § 11(c) no such waiver has occurred since the defendant has here raised the issue by pre-answer motion to dismiss.

Defense counsel's affirmation asserts that the claim was personally served upon the Attorney General on October 5, 2005 and this assertion has not been refuted by the claimant. The claim itself alleges an accrual date of April, 1985. No other date is referenced in the claim and no other date of accrual can be discerned from its contents. It is thus established for purposes of the motion that the claimant failed to serve the claim within the time period provided therefor in Court of Claims Act § 10 (3) when measured from the April 1985 accrual date. Having properly raised the issue in its pre-answer motion the defendant is entitled to dismissal for claimant's failure to satisfy the time limitations contained in section 10 of the Court of Claims Act. The claim is, accordingly, dismissed.

Dismissal of the claim for lack of jurisdiction renders academic claimant's cross-motion to strike defenses and award summary judgment. The cross-motion is therefore denied.


February 27, 2006
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated November 1, 2005;
  2. Affirmation of Ellen Matowik dated November 1, 2005 with exhibits;
  3. "Affirmation" of Queen Esther Jones dated November 30, 2005 with exhibits;
  4. Notice of cross-motion dated November 30, 2005;
  5. "Affirmation" of Queen Esther Jones dated November, 2005 with exhibits;
  6. Affirmation of Ellen Matowik dated December 19, 2005.