Filed papers: Claim.
In this claim, claimant seeks damages based upon allegations that he was
assaulted by a correction officer on February 25, 2005, when he was incarcerated
at Mid-State Correctional Facility. In his claim, claimant states that Officer
D. Smith “physically grabbed claimant and brought claimant down to the
floor”, and while he was on the floor, certain correction officers
physically assaulted him by punching and kicking him. Claimant has described
these actions as an “intentional assault” as well as the
“negligent tort of battery”.
As established by the exhibits submitted with defendant’s motion,
claimant served a Notice of Intention to File a Claim upon the Attorney General
on March 21, 2005 (see Exhibit A to Items 1,2). A claim was then served
upon the defendant on December 1, 2006 (see Exhibit B to Items 1,2) and was
filed the same date with the Clerk of the Court of Claims.
Notwithstanding claimant’s contention that this claim contains
allegations of negligence, the sole cause of action set forth in this claim
seeks to recover damages for an assault, an intentional tort, since no cause of
action exists in New York permitting damages for a negligent assault
(Allstate Ins. Co. v Schimmel, 22 AD3d 616; Schetzen v Robotsis,
273 AD2d 220, 221; Wrase v Bosco, 271 AD2d 440, 441).
As a result, the time within which a claim must be served and filed is governed
by the provisions of Court of Claims Act §10(3-b), which requires that a
claim alleging an intentional tort must be served on the Attorney General and
filed with the Clerk of the Court of Claims within 90 days of accrual, unless a
Notice of Intention to File a Claim is served upon the Attorney General within
such 90 days. If a Notice of Intention is timely and properly served upon the
Attorney General, the claim must then be served and filed within one year from
the date of accrual.
As this alleged assault occurred on February 25, 2005, it appears that claimant
did timely and properly serve a Notice of Intention upon the Attorney General,
since the defendant acknowledges service of the Notice of Intention on March 21,
2005. Claimant therefore had one year from the date of accrual (February 25,
2005) to serve and file his claim. Since the claim was not served and filed
until December 1, 2006, the claim clearly was not served and filed within such
one-year period, and is therefore untimely under Court of Claims Act §
The provisions of the Court of Claims Act relating to the time and manner of
service and filing are jurisdictional prerequisites to the maintenance of a
claim, and as such must be strictly construed (Finnerty v New York State
Thruway Auth., 75 NY2d 721; Greenspan Bros. v State of New York, 122
AD2d 249). The failure of claimant to timely serve and file his claim therefore
requires dismissal (Pizarro v State of New York, 19 AD3d 891; (Byrne v
State of New York, 104 AD2d 782, lv denied, 64 NY2d 607).
Based on the foregoing, therefore, it is
ORDERED, that Motion No. M-72768 is hereby GRANTED; and it is further
ORDERED, that Claim No. 113061 is hereby DISMISSED.