New York State Court of Claims

New York State Court of Claims

ABREU v. THE STATE OF NEW YORK, #2006-033-193, Claim No. 109889, Motion No. M-71409


Synopsis



Case Information

UID:
2006-033-193
Claimant(s):
CARLOS ABREU
Claimant short name:
ABREU
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109889
Motion number(s):
M-71409
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Carlos Abreu, Pro Se
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Kathleen M. Arnold, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 21, 2006
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim for damages to personal property of Carlos Abreu (hereinafter “claimant”) while claimant was transferred from Eastern Correctional Facility to Cayuga Correctional Facility on April 8, 2004. Claimant exhausted his administrative remedies on June 8, 2004.

Defendant moves this Court to dismiss the claim for claimant’s failure to timely serve a claim pursuant to Court of Claims Act §10(9)[1].

The requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Lurie v State of New York, 73 AD2d 1006, aff’d 52 NY2d 849). The purpose of these requirements is to give the State prompt notice of an occurrence and an opportunity to investigate the facts and prepare a defense. It is well settled that if the filing is not timely then the claim is subject to dismissal (Greenspan Bros. v State of New York, 122 AD2d 249). Court of Claims Act §10(9) states that a claim must be filed and served within 120 days of the exhaustion of administrative remedies.

Claimant served his claim upon the Attorney General’s Office on November 18, 2004 and filed the claim in the Clerk’s Office on September 24, 2004. While claimant timely filed the claim, he failed to timely serve the claim. The Court understands, according to defendant’s motion, claimant served a notice of intention within the 120 days following June 8, 2004, this is insufficient to save the claim. Court of Claims Act §10(9) specifically states a claim must be filed. No provision is made for the service of a notice of intention.

Based on the foregoing, defendant’s motion to dismiss the claim is granted. The Clerk of the Court is directed to close the file.


June 21, 2006
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].The following papers have been read and considered on defendant’s motion: Notice of Motion to Dismiss dated March 13, 2006 and filed March 13, 2006; Affirmation of Kathleen M. Arnold, Esq. with annexed Exhibits A-C dated March 13, 2006 and filed March 13, 2006.