New York State Court of Claims

New York State Court of Claims

DAVIS v. THE STATE OF NEW YORK, #2007-015-226, Claim No. 113697, Motion No. M-73501


Synopsis


Claim was dismissed as untimely.

Case Information

UID:
2007-015-226
Claimant(s):
DONNELL E. DAVIS
Claimant short name:
DAVIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113697
Motion number(s):
M-73501
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Donnell E. Davis, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 17, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant moves to dismiss the instant claim as untimely pursuant to CPLR 3211 (a) (2) and (8) and Court of Claims Act §§ 10 (3) and 11 (a). To the extent the claim alleges violations of the U.S. Constitution and 42 USC § 1983 (civil action for deprivation of rights), the defendant moves for dismissal of these causes of action on the alternate ground that the Court lacks subject matter jurisdiction. The defendant also seeks dismissal of the claim pursuant to CPLR 3211 (a) (7) on the ground that it fails to state a cause of action. Claimant, an inmate proceeding pro se, alleges a variety of constitutional causes of action in his claim, all of which arise from the alleged failure of correction officials to issue a pass permitting him to attend a religious prayer service on December 30, 2006. In support of its pre-answer motion for dismissal, the defendant alleges that a notice of intention to file a claim was served upon the Office of the Attorney General by regular mail on March 2, 2007. A copy of the envelope in which the notice of intention was served confirms service of the notice by regular mail (defendant's Exhibit C). The claim was filed and served by certified mail, return receipt requested, on May 11, 2007.

As relevant to this motion, the claimant's opposition papers indicate only that a copy of the notice of intention was "sent to the Attorney Generals (sic) office, via U.S. mail" (see claimant's "Motion in Opposition to Attorney Generals 'Motion to Dismiss Claim # 113697' ", p.4, ¶ 18)[1].

The law is clear that the State's waiver of immunity under Court of Claims Act § 8 is contingent upon claimant's compliance with the 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 N.Y. 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 of 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 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.

The Court need not determine whether the Constitutional claims at issue in this case are properly categorized as negligent or unintentional torts so as to invoke the limitations period contained in Court of Claims Act § 10 (3) or intentional so as to invoke the limitations period contained in § 10 (3-b). Both sections require that a claim be filed and served within 90 days after the accrual of the claim unless a notice of intention to file a claim is served within that time period[2]. Court of Claims Act § 11(a) (i) provides that a notice of intention to file a claim shall be served either personally or by certified mail, return receipt requested. Defendant established that the notice of intention to file a claim in this case was improperly served by regular mail and the claimant has failed to submit proof to the contrary. Inasmuch as the claim was not filed and served until May 11, 2007, it is untimely. Accordingly, the defendant's motion to dismiss the claim as untimely is granted and the claim is dismissed.


August 17, 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 June 1, 2007;
  2. Affirmation of Belinda A. Wagner dated June 1, 2007 with exhibits;
  3. "Motion in Opposition" of Donnell E. Davis sworn to June 6, 2007 with exhibits;
  4. Reply affirmation of Belinda A. Wagner dated June 8, 2007 with exhibits;
  5. "Cross-Motion to Dismiss Reply Affirmation" of Donnell E. Davis sworn to June 13, 2007.


[1]. Although the claimant filed papers denominated a "Notice of Motion in opposition to Motion to dismiss claim" and a "Cross Motion To Dismiss Reply Affirmation", neither conforms to the requirements for bringing motions (see 22 NYCRR 206.8[a]) and CPLR 2214[a]). As a result, these papers have been considered as opposition to the defendant's motion.
[2]. Where a notice of intention to file a claim has been timely served, Court of Claims Act § 10 (3) provides a two year period of limitations to file a claim whereas Court of Claims Act § 10 (3-b) provides only a one year period.