New York State Court of Claims

New York State Court of Claims

CRUZ v. THE STATE OF NEW YORK, #2006-015-100, Claim No. 111722, Motion No. M-71143


Claim dismissed as untimely served measured either from date of claimant's fall or from date of removal of claimant's cast placed for misdiagnosed ankle fracture.

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:
Law Offices of Steve Newman
By: Steve Newman, EsquireNo Appearance
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Belinda A. Wagner, Esquire Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 29, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's pre-answer motion to dismiss the claim for lack of jurisdiction is granted. Claimant seeks to recover damages for personal injuries sustained on January 6, 2005 when he slipped and fell on a walkway at Mt. McGregor Correctional Facility in Wilton, New York sustaining an ankle fracture which was allegedly misdiagnosed by facility medical personnel as an ankle sprain. Although not set forth as a separate cause of action (see 22 NYCRR § 206.6 [b]) claimant apparently also seeks to recover damages for medical malpractice related to the alleged misdiagnosis. The motion was unopposed despite several adjournments of the return date of this motion, at claimant's counsel's request, to allow additional time to submit opposing papers.

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 (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 mandated 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 occurred here since the defendant raised the issue by the instant pre-answer motion.

The proof submitted on the motion establishes that the claim was personally served upon the Attorney General on December 1, 2005 (see Exhibit A). It is thus established for purposes of the motion that the claimant failed to serve the claim within the 90 day time period provided therefor in Court of Claims Act § 10 (3) when measured either from the date of claimant's accident on January 6, 2005 or from the date claimant's cast was removed which information set forth in the claim suggests occurred around March 29, 2005. Since no notice of intention was served the claim served on December 1, 2005 and filed on December 9, 2005 was untimely. Having properly raised the issue in its pre-answer motion the defendant is entitled to dismissal of the claim for claimant's failure to serve the claim within the time limitations contained in section 10 of the Court of Claims Act.

The claim is, accordingly, dismissed.

June 29, 2006
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated January 4, 2006;
  2. Affirmation of Belinda A. Wagner dated January 4, 2006 with exhibit.