New York State Court of Claims

New York State Court of Claims

TOLENTINO v. STATE OF NEW YORK, #2007-015-212, Claim No. 111485, Motion No. M-73178


Synopsis


Defendant's motion to dismiss claim for injuries allegedly sustained in an inmate-on-inmate assault was granted as the claim was untimely.

Case Information

UID:
2007-015-212
Claimant(s):
JESUS TOLENTINO
Claimant short name:
TOLENTINO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111485
Motion number(s):
M-73178
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Jesus Tolentino, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 9, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant's motion to dismiss the instant claim as untimely pursuant to Court of Claims Act § 10 (3) is granted. Claimant, an inmate proceeding pro se, brings this claim for injuries allegedly sustained on August 2, 2003 when he was attacked by another inmate at Great Meadow Correctional Facility. A notice of intention to file a claim was served by certified mail, return receipt requested on October 31, 2003 and received by the Office of the Attorney General on November 4, 2003 (defendant's Exhibit B). A claim was thereafter served upon the Attorney General by certified mail, return receipt requested, on March 14, 2005 and filed with the Clerk of the Court on October 11, 2005. The defendant's answer to the claim asserted as a sixth affirmative defense that "[t]his Court lacks jurisdiction as the claim is untimely in that neither the claim nor a notice of intention was served within ninety (90) days of the accrual of the claim".

The law is clear that the State's waiver of immunity under Section 8 of the Court of Claims Act is contingent upon claimant's compliance with specific conditions set forth in Article II of the Court of Claims Act (Lepkowski v State of New York, 1 NY3d 201, 206 [2003]). "Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). As noted by the Court of Appeals in Lyles v State of New York, 3 NY3d 396 [2004], there is a distinction between statutes of limitations and the filing limitations in the Court of Claims Act. "The time limitations in the Court of Claims Act . . . are distinctly concerned with the subject matter jurisdiction of the Court of Claims as the State has waived its sovereign immunity against suit only to the extent that claimants comply with the provisions of the statute" (id. at 400). The failure to timely file and serve a claim is thus a jurisdictional defect which deprives this Court of subject matter jurisdiction to hear the claim. In this regard, Article II, section 10 of the Court of Claims Act makes clear that "[n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied" with the time limitations set forth in that section. Court of Claims Act § 10 (3) sets forth the time limitations applicable to the instant claim:
A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim.

Court of Claims Act § 11(a) (i) provides that service by certified mail, return receipt requested, upon the Attorney General is not complete until the claim or notice of intention is received. Here, the notice of intention to file a claim was received by the Attorney General on November 4, 2003, more than 90 days following the accrual of the claim, and the claim was not filed with the Clerk of the Court of Claims until October 11, 2005. As a result, the claim is untimely inasmuch as neither a claim nor a notice of intention to file a claim was filed and served within ninety days following the accrual of the claim. The failure to comply with the time limitations contained in Court of Claims Act § 10 having been properly preserved as a defense in the defendant's answer (see Court of Claims Act § 11 [c] [i]), the defendant's motion is granted and the claim is dismissed.


July 9, 2007
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated April 5, 2007;
  2. Affirmation of Michael Friedman dated April 5, 2007 with exhibit.