New York State Court of Claims

New York State Court of Claims

JONES v. THE STATE OF NEW YORK, #2006-028-531, Claim No. 108887, Motion No. M-70708


Synopsis


Untimely, improperly served claim is dismissed on Defendant’s motion.


Case Information

UID:
2006-028-531
Claimant(s):
THOMAS JONES
Claimant short name:
JONES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108887
Motion number(s):
M-70708
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant’s attorney:
THOMAS JONES, pro se
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: G. Lawrence Dillon, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 22, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Defendant’s motion for an order of dismissal:

1. Notice of Motion and Supporting Affirmation of G. Lawrence Dillon, AAG, with annexed Exhibits

2. Affidavit in Opposition (none received)


Filed papers: Claim; Answer


This claim arose on December 16, 2003 at Mid-State Correctional Facility. Claimant, who was an inmate of the facility at that time, alleges that he was struck in the chest by a Correction Officer as he was attempting to go to the library. Defendant now moves for an order dismissing the Claim on the grounds that it was improperly served and untimely.

Claimant initially served a copy of the Claim on the Attorney General on February 13, 2004 (Dillon Affirmation, Exhibit A), which was within the 90 day period following the incident (see Court of Claims Act §§10[3] [negligence], 10[3-b] [intentional tort]). That copy of the Claim was properly served by certified mail, return receipt requested, but it was unverified. Defendant elected, as was its right, to treat that document as a nullity, and it was returned with “due diligence” on the same day that it had been received (CPLR 3022; Lepkowski v State of New York, 1 NY3d 201, 210 [2003]; Dillon Affirmation, Exhibit C).

Thereafter, on March 17, 2004, Claimant served a properly verified claim on the Attorney General (id. Exhibit D). This time, however, service was effected by regular mail (id. Exhibit E). In addition, the date on which the second claim was received was more than 90 days after the incident giving rise to the action, making it untimely as well as improperly served.

In the Answer, Defendant preserved the defenses relating to improper service and untimeliness with sufficient particularity to satisfy the requirement of section 11(c) of the Court of Claims Act. Claimant has made no submission in opposition to the instant motion.

Compliance with the time and service requirements contained in the Court of Claims Act is a jurisdictional prerequisite to commencing an action in this Court (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Rodriguez v State of New York, 307 AD2d 657 [3d Dept 2003]; Bogel v State of New York, 175 AD2d 493 [3d Dept 1991]).

Defendant’s motion is GRANTED and Claim No. 108887 is DISMISSED.


March 22, 2006
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims