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,
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