New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2007-010-026, Claim No. 110011, Motion No. M-73251


Synopsis


Defendant’s motion to dismiss is granted as the claim was never served on the attorney general’s office.

Case Information

UID:
2007-010-026
Claimant(s):
KENNETH SMITH
Claimant short name:
SMITH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110011
Motion number(s):
M-73251
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
KENNETH SMITHPro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 8, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-4 were read and considered by the Court on defendant’s motion to dismiss:
Notice of Motion, Affirmation and Exhibits.............................................................1

Claimant’s Exhibit for Certified Mail, Return Receipt Requested, Dated November 4, 2002.......................................................................................................................2

Attorney’s Supplemental Affirmation and Exhibit....................................................3

Claimant’s Letter Dated July 6, 2007[1]......................................................................4

At the trial of Claim No. 110011 regarding personal injuries claimant allegedly sustained in July 2002, defendant moved to dismiss for claimant’s failure to serve a claim upon defendant. Defendant submitted an affidavit from a clerk in the Claims Bureau in the New York City Office of the Attorney General of the State of New York (AG) indicating no record of a claim in this matter (Defendant’s Motion Ex. A). Claimant opposed the motion maintaining that he served a claim upon the AG by certified mail, return receipt requested. The Court adjourned the motion to afford claimant the opportunity to submit supporting documentation. Claimant has since provided the Court with a copy of a receipt dated November 4, 2002 for a certified mailing, return receipt requested, to the AG (Defendant’s Motion Ex. B). In response, defendant submitted two supplemental affidavits of the Claims Bureau clerk, i.e. Defendant’s Motion Exhibit C and Defendant’s Supplemental Affirmation Exhibit A.

Upon a thorough search of defendant’s records, the AG Bureau Clerk has found that on November 4, 2002, claimant served the AG with a Notice of Intention to File a Claim regarding an injury that occurred during claimant’s incarceration in July of 2002. There is no record of any claim served upon the AG.
Court of Claims Act §10(3) provides that when a Notice of Intention to File a Claim for personal injuries has been served within 90 days after the accrual of the action, a claim must be served and filed within two years after the accrual. Given the July 2002 accrual, the Notice of Intention served in November 2002 was untimely because it was not served within 90 days after accrual (Court of Claims Act §10[3]). Accordingly, even if claimant had served and filed a claim thereafter, it would be untimely. The mandates for timely service require strict compliance and are jurisdictional in nature (see Finnerty v New York State Thruway Auth., 75 NY2d 721). The failure to timely commence a claim is a jurisdictional defect requiring dismissal (see Welch v State of New York, 286 AD2d 496, 497). Additionally, the statute of limitations has since lapsed and the Court would be without discretion to entertain a late claim application (see Court of Claims Act §10[6]).

Defendant’s motion to dismiss is GRANTED.


August 8, 2007
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1]. Although claimant’s letter was received after the return date of the motion, the Court has considered the letter.