New York State Court of Claims

New York State Court of Claims

ABREU v. THE STATE OF NEW YORK, #2006-033-217, Claim No. None, Motion No. M-72070


Synopsis



Case Information

UID:
2006-033-217
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):
None
Motion number(s):
M-72070
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:
December 28, 2006
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion for a late claim for loss of property by Carlos Abreu (hereinafter "movant") which it is alleged defendant lost while transferring movant within a correctional facility. The incident took place on April 8, 2004, at Eastern Correctional Facility, Napanoch, New York.

Movant had previously filed a claim in this matter, which this Court dismissed as untimely (Claim No. 109889, M-71409). Movant now moves this Court for permission to file a late claim or, in the alternative, to convert the notice of intention to a claim pursuant to Court of Claims Act §10(8)(a)[1]. Defendant opposes the motion.
Court of Claims Act §10(9) states
A claim of any inmate in the custody of the department of correctional services for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy. (Emphasis added).
An application pursuant to Court of Claims Act §10(8) was taken up in Gloster v State of New York, (Ct Cl, McNamara, J., Claim No. 103662, M-64877). In Gloster, the Court found that Court of Claims Act §10(9) does not provide for the service of a notice of intention only for a claim. Thus, relief pursuant to Court of Claims Act §10(8) was not available. This Court agrees. 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, not a notice of intention, must be filed and served within 120 days of the exhaustion of administrative remedies.
In the alternative, movant makes an application for a late claim pursuant to Court of Claims Act §10(6). Permission to file a late claim is not available for matters pursuant to Court of Claims Act §10(9) (Roberts v State of New York, 11 AD3d 1000).
Based on the foregoing, movant’s motion is denied.
December 28, 2006
Hauppauge, New York
HON. JAMES J. LACK
Judge of the Court of Claims

[1].The following papers have been read and considered on movant’s motion: Notice of Motion for Permission to File a Late Claim dated July 18, 2006 and filed July 27, 2006; Affidavit in Support of Motion to File a Late Claim of Carlos Abreu with annexed Exhibit sworn to July 24, 2006 and filed July 27, 2006; Affirmation in Opposition to Motion for Permission to File a Late Claim of Kathleen M. Arnold, Esq. dated August 18, 2006 and filed August 21, 2006.