New York State Court of Claims

New York State Court of Claims

BELLAMY v. THE STATE OF NEW YORK, #2006-029-606, Claim No. 109353, Motion No. M-72363


Although Court of Claims Act does not require in every case that a claim state the date it occurred, only the “time” it occurred which can contemplate a range of dates, this claim was insufficient because it merely alleges that the claim accrued while claimant was confined at the correctional facility. Also the claim was late filed, defendant waited until expiration of the underlying statute of limitations before moving to dismiss, and the court was required to dismiss the claim for these two reasons.

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:
KAREEM BELLAMY, Pro Se(No appearance on motion)
Defendant’s attorney:
ELIOT SPITZER, ATTORNEY GENERALBy: Michael W. Friedman, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 1, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This is defendant’s motion to dismiss the claim for lack of jurisdiction, supported by an affirmation from counsel and two exhibits. Claimant has not submitted any papers in opposition to the motion.

The claim was served on April 26, 2004 and filed on May 13, 2004. It alleges that defendant’s employees at Shawangunk Correctional Facility have been negligent in treating claimant for herpes; specifically, that some of the medication prescribed to claimant did not work and caused him to suffer side effects.

Court of Claims Act § 11(b) requires that a claim set forth, inter alia, the “time when” it accrued. Although this requirement is flexible enough to encompass a claim accruing over a “range of dates” (Epps v State of New York, 199 AD2d 914; see also Foreman v City University of New York, Claim No. 102476, M-71104, UID No. 2006-036-534 [5/30/06]), or a claim accruing “on or about” a particular date (DeGregorio v State of New York, Claim No. 109305, M-71651, UID No. 2006-013-064 [9/19/06]), it requires more delineation than that contained in the instant claim, which merely alleges that the negligence occurred while claimant was confined at Shawangunk.

Moreover, although the claim contains no reference whatsoever to any date, defense counsel alleges that his review of claimant’s medical records indicates that the claim in fact accrued September 10, 2003 and that in addition to failing to state the time when it occurred, it is jurisdictionally defective because it was not interposed within 90 days of accrual as required by Court of Claims Act § 10(3). The lateness defense was duly raised in defendant’s answer (see Court of Claims Act § 11[c]). Having carefully waited until the expiration of the statute of limitations, thus foreclosing the possibility of claimant addressing the defects in his claim via a motion for permission to late file a claim, defendant now moves to dismiss.

The motion is obviously meritorious. The claim failed to set forth the time when it accrued within the meaning of the statute (see Lepkowski v State of New York, 1 NY3d 201; Heisler v State of New York, 78 AD2d 767) and defendant’s unrefuted submission indicates that it was not interposed in a timely manner. Accordingly, the motion is granted.

November 1, 2006
White Plains, New York

Judge of the Court of Claims