New York State Court of Claims

New York State Court of Claims

VELASQUEZ v. THE STATE OF NEW YORK, #2006-032-007, Claim No. 110829, Motion No. M-70268


Synopsis



Case Information

UID:
2006-032-007
Claimant(s):
JUAN VELASQUEZ
Claimant short name:
VELASQUEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110829
Motion number(s):
M-70268
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Juan Velasquez, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Belinda A. Wagner, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
February 15, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves this Court to dismiss the claim pursuant to CPLR 3211, for lack of subject matter jurisdiction.


In May 2005, claimant, an inmate housed at Franklin Correctional Facility, filed this action alleging that on November 13, 2004, a nurse at the facility negligently disclosed claimant's tuberculosis condition in the waiting room of the infirmary. Claimant served the Attorney General with a notice of intention on February 17, 2005, and a claim on May 2, 2005.

In support of its motion, defendant contends that claimant failed to comply with Court of Claims Act § 10(3) and 11 (a)(i), because he failed to serve either a claim or a notice of intention within 90 days of the date his claim accrued.

Court of Claims Act § 10 (3) provides that negligence claims against the State must be "filed and served upon the [A]ttorney [G]eneral within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the [A]ttorney [G]eneral a written notice of intention to file a claim". Failure to comply with this jurisdictional requirement is fatal to the claim (see Conner v State of New York, 268 AD2d 706, 707 [3d Dept 2000]). It is well settled that a claim accrues for purposes of the Court of Claims Act when the injury is suffered (see Konigsberg v State of New York, 256 AD2d 982, 982-983 [3d Dept 1998]. Here, claimant's cause of action accrued on November 13, 2004, the date that the nurse allegedly disclosed claimant's medical information in the facility's waiting room. Thus, claimant was required to either serve the Attorney General with a claim or a notice of intention by February 11, 2005. Given that claimant did not serve his notice of intention until February 17, 2005 or file and serve his claim until May 2, 2005, he did not comply with the jurisdictional requirements of this Court. As such, his claim must be dismissed.

Accordingly, defendant's motion M-70268 is granted.



February 15, 2006
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


Papers Considered:


1. Notice of Motion filed June 13, 2005;

2. Affirmation of Belinda A. Wagner dated June 9, 2005; Exhibits A-B annexed.