New York State Court of Claims

New York State Court of Claims

CRUZ v. STATE OF NEW YORK, #2006-018-547, Claim No. 112350-A, Motion Nos. M-71917, M-71996


Claim dismissed based upon Court of Claims Act §§ 10 and 11.

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):
M-71917, M-71996
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
By: HEATHER R. RUBINSTEIN, ESQUIREAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 12, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant brings this pre-answer motion seeking dismissal of the claim.[1] Claimant

opposes the motion and brings his own motion seeking a stay.

Defendant argues that Claimant’s claim arises from the alleged medical malpractice which occurred on May 27, 2005, at Cape Vincent Correctional Facility. A notice of intention to file a claim was properly served upon Defendant on March 27, 2006. A claim was properly filed and served upon Defendant on May 17, 2006. Defendant argues that this Court lacks both personal and subject matter jurisdiction as no notice of intention to file claim was served nor was a claim filed and served within 90 days of the date of accrual of the cause of action.

Claimant, in response, brings a motion for a stay on the basis that he is “disable[d] due to the restriction of the [c]ustodial care of the Department of Homeland Security, which the claimant is currently in the custody” (Claimant’s motion papers ¶4). Claimant acknowledges that he served a notice of intention upon the Assistant Attorney General on March 27, 2006 and a claim on May 17, 2006. He asserts that he complied with the Court of Claims Act §§ 10 and 11 and that any delay was caused by the State in addressing his administrative grievance. He proposes that the end of his grievance process should be used as the date of accrual.

Court of Claims Act § 10(3) provides that a claim to recover damages for personal injuries as a result of the negligence of an officer or employee of the State shall be “filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim” (Court of Claims Act § 10[3]).

Despite Claimant’s assertion that the date of accrual should be the date his grievance process ended, the date of accrual is the date the alleged negligent act or omission occurs (Labshere v Petroski, 32 AD3d 645; Ogle v State of New York, 142 AD2d 37). Here, the claim asserts that “On May 27, 2005, the Claimant was given inadequate medical care by the Cape Vincent Correctional Facility Medical Department, and as a direct result of the inadequacy of the medical care, he sustained substantial on-going injuries”(Verified Claim ¶6). Claimant had until August 25, 2005, to serve a notice of intention or to file and serve a claim. Claimant, by his own admission, did not. Even if Claimant had shown good grounds to warrant a stay there is no reason to grant one, as there is nothing Claimant can do to alter the fact that the action was not timely commenced in the Court of Claims (CPLR 2201; Siegel, NY Prac § 255, at 436 [4th ed]). The Court cannot ignore the late filing and service of the claim. Such a defect is jurisdictional and cannot be corrected by amendment or waived by the Court (Hodge v State of New York, 213 AD2d 766, 767; Byrne v State of New York, 104 AD2d 782 lv denied 64 NY2d 607; Grande v State of New York, 160 Misc 2d 383, 385).

Based upon the foregoing, Claimant’s motion for a stay is DENIED and Defendant’s motion is GRANTED. The claim is DISMISSED.

December 12, 2006
Syracuse, New York
Judge of the Court of Claims

The Court has considered the following documents in deciding these motions:


Notice of Motion................................................................................................1

Affirmation of Heather R. Rubinstein, Assistant Attorney General,

in support, with exhibits attached thereto...............................................2

Unsworn Answer and Objections to Motion to Dismiss of Claimant,

in opposition, dated July 10, 2006, with exhibits attached thereto.........3


“Motion for a Stay” with exhibits attached thereto, dated July 10, 2006...........4

Affirmation of Heather R. Rubinstein, Assistant Attorney General,

in opposition..............................................................................................5

[1]. Defendant’s notice of motion properly sets forth the relief demanded, but bases its request for relief on erroneous statutory sections. (The notice provides that the requested relief is “an Order pursuant to Rule 3032[c][d] for Order and Judgment dismissing the Claimant’s Claim and, pending decision, for an Order pursuant to § 3211 and for such other and further relief as may be deemed just and proper.”) The Court finds the error harmless and considered the motion, since Claimant by his answering papers is clearly on notice of the correct statutory reasons for Defendant’s motion.