New York State Court of Claims

New York State Court of Claims

TAYLOR v. STATE OF NEW YORK, #2006-018-554, Claim No. 112587, Motion No. M-72151


Synopsis


Based upon submissions to the Court, the claim is timely and Defendant’s motion is denied.

Case Information

UID:
2006-018-554
Claimant(s):
EUGENE TAYLOR
Claimant short name:
TAYLOR
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112587
Motion number(s):
M-72151
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
EUGENE TAYLORPro Se
Defendant’s attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: EDWARD F. McARDLE, ESQUIREAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 3, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

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

opposes the motion.

By this motion, Defendant argues that the claim is untimely as no notice of intention was served or claim filed and served within 90 days of the date of accrual of March 7, 2006. Claimant, in response,[1] submits an affidavit of service attesting that a notice of intention was served upon the Attorney General’s office by certified mail, return receipt requested on March 14, 2006. Claimant attaches to his affidavit of service, copies of certified mail receipts evidencing that something was mailed to the Attorney General’s office on March 28, 2006, the same date something was sent to the Clerk of the Court of Claims. Included with Claimant’s submissions is a copy of a letter from the Clerk of the Court indicating that a Notice of Intention was received in the Clerk’s office on March 30, 2006, but was returned to Claimant because notices of intention do not need to be filed with the Clerk.

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]).

If Claimant served a notice of intention in March 2006, his claim filed and served in July 2006 would be timely. Claimant’s submissions adequately establish that he served a notice of intention upon the Attorney General in Albany. His affidavit of service indicates service was made on March 14, 2006, and certified mail receipts evidence something was mailed to both the Clerk and the Attorney General on March 28, 2006.[2] The Clerk’s office acknowledged receipt of a notice of intention on March 30, 2006. Although there is no doubt that the Assistant Attorney General who makes the motion on behalf of the State did not receive a copy of the notice of intention, he does not have personal knowledge of what was received in the Albany office, and therefore, cannot deny receipt of the notice of intention at that location.

Based upon the submissions before the Court, the claim filed on July 31, 2006, and served on July 31, 2006, is timely, as a notice of intention to file a claim was served upon the Attorney General within 90 days of the date of accrual. Defendant’s motion is DENIED.



January 3, 2007
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


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


Affirmation of Edward F. McArdle, Esquire, Assistant Attorney General,

in support with exhibit attached thereto.................................................2


Reply “Affirmation” of Claimant, in opposition, sworn to August 28, 2006

with attachments......................................................................................3


[1].Claimant also submits a document he labels an “affirmation,” however, Claimant is not authorized to submit an affirmation (CPLR 2106), rather, an affidavit is required.
[2].The Court is cognizant that even for inmate correspondence a 14-day delay between depositing a letter in an appropriate mail depository and it being sent certified mail is a long time. However, the availability of funds for mailing can cause delay (see 7 NYCRR 721.3).