New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2007-038-558, Claim No. 107770, Motion No. M-73868


Synopsis


Defendant’s motion to dismiss the claim for untimely filing and service of claim is granted.

Case Information

UID:
2007-038-558
Claimant(s):
ANTONIO BROWN
Claimant short name:
BROWN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107770
Motion number(s):
M-73868
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
ANTONIO BROWN, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Dennis M. Acton, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 10, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant seeks compensation for injuries allegedly sustained as a result of defendant’s negligence. Specifically, the claim alleges that claimant sustained injuries to his left hand, neck and back on August 28, 2000, February 16, 2001 and July 24, 2002, and that defendant failed to provide adequate medical treatment for these injuries. After being notified that the claim was scheduled for trial on October 30, 2007, defendant made the instant motion to dismiss the claim because, inter alia, it was not timely filed with the Court of Claims, nor timely served on the Attorney General. Claimant has not submitted opposition to the motion. A claim for damages from personal injury due to the State’s negligence must be filed with the Clerk of the Court and served upon the attorney general within ninety days after the accrual of the claim (Court of Claims Act § 10 [3]). Alternatively, and within that same ninety-day period, the claimant may serve upon the attorney general a written notice of intention to file a claim (id.). It is well established that the filing and service requirements of the Court of Claims Act must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]) and that the failure to comply with those requirements is a jurisdictional defect requiring dismissal of the claim (see id.; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Davis v State of New York, UID # 2006-042-503, Claim # 107278, Motion # M-72510, Siegel, J.,[Jan. 9, 2007]; Farnsworth v State of New York, UID # 2006-031-091, Claim # 110822, Motion # M-71631, Minarik, J. [Dec. 29, 2006]).

The latest date on which claimant’s injuries were sustained was July 24, 2002. Claimant does not allege any negligence after that date, and thus, he was required to file and serve the claim, or serve a notice of intention, within ninety days, or not later than October 22, 2002. He did not serve a notice of intention, and his claim was not filed and served until May 21 and May 22, 2003, respectively. Accordingly, the Court lacks jurisdiction over the claim and it must be dismissed.

In light of this disposition, defendant’s remaining argument need not be addressed.

Therefore, it is ORDERED, that defendant’s Motion No. M-73868 is GRANTED and Claim # 107770 is DISMISSED, and it is further

ORDERED, that Claim # 107770 be stricken from the Court’s trial calendar of October 30, 2007.



September 10, 2007
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims



Papers considered
:

(1) Claim, filed May 21, 2003;

(2) Verified Answer, filed June 19, 2003;

(3) Notice of Motion to Dismiss, dated August 17, 2007;
(4) Affidavit in Support of Dennis M. Acton, AAG, sworn to August 17, 2007, with exhibits A-B.