New York State Court of Claims

New York State Court of Claims

ALSTON v. THE STATE OF NEW YORK, #2006-033-221, Claim No. 107860, Motion No. M-71942


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):

James J. Lack
Claimant’s attorney:
Bernstein & Bernstein, LLPBy: Marc A. Bernstein, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Saul Aronson, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 29, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


This is a claim for damages by Jesse Alston (hereinafter “claimant”) based upon alleged improper medical treatment by the State of New York. The incident occurred while claimant was an inmate at Eastern Correctional Facility, Napanoch, New York.

Defendant moves to dismiss the claim as untimely[1]. Defendant alleges the date of occurrence to be May 18, 2002. Claimant served a notice of intention on August 19, 2002, approximately 93 days after May 18, 2002.

In opposition, claimant responds that May 18, 2002 was the date that he initially received his injury. He contends that the claim is for the improper medical treatment he received on May 18, 2002 and continuing through June 13, 2002, as alleged in the claim.

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(3) states that the claim or notice of intention shall be filed within 90 days of the date of accrual. If a notice of intention is served upon the Attorney General’s office then claimant must serve and file his claim within two years of the date the claim accrued.

Claimant clearly depicts in his claim that it is the improper medical care for which he is suing. Further, claimant states the dates on which he believes that he received improper treatment. The last date is June 13, 2002. Thus, claimant’s notice of intention is timely.

Based upon the foregoing, defendant’s motion to dismiss is denied.

December 29, 2006
Hauppauge, New York

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 June 30, 2006 and filed June 30, 2006; Affirmation in Support of Motion to Dismiss of Saul Aronson, Esq. with annexed Exhibits A-C dated June 30, 2006 and filed June 30, 2006; Affirmation in Opposition of Marc A. Bernstein, Esq. dated August 22, 2006 and filed August 23, 2006.