New York State Court of Claims

New York State Court of Claims

ROMAN v. STATE OF NEW YORK, #2007-038-574, Claim No. 112153, Motion No. M-74051


Synopsis


Defendant’s motion to dismiss on jurisdictional grounds granted; claimant served notice of intention on Attorney General, then filed but did not serve claim

Case Information

UID:
2007-038-574
Claimant(s):
SADY ROMAN
Claimant short name:
ROMAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112153
Motion number(s):
M-74051
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
SADY ROMAN, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
Paul F. Cagino, AAG, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 4, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The instant claim alleges that while claimant was incarcerated at Franklin Correctional Facility, a nurse left a needle in his arm after an insulin injection, and that claimant’s requests to have the needle removed were denied. Claimant served the Attorney General with a notice of intention to file a claim, which was received by the Office of the Attorney General on March 2, 2006. The claim was filed with the Clerk of the Court of Claims on March 30, 2006. Defendant moves to dismiss the claim on jurisdictional grounds, contending that the claim was never served on the Attorney General.

Court of Claims Act § 11 (a) requires that “[t]he claim shall be filed with the clerk of the court; and . . . a copy shall be served upon the attorney general within the times hereinbefore provided for filing with the clerk of the court. . .” As pertinent here, Court of Claims Act § 10 (3) provides that “[a] claim to recover damages . . . 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 accrual of such claim” (emphases added). Thus, although claimant’s service of the notice of intention to file a claim extended the time within which claimant could serve the claim upon the Attorney General, service of the notice of intention did not eliminate the requirement that the claim be timely served upon the Attorney General.

Claimant has not opposed defendant’s motion. The claim states that it accrued on October 7, 2003, and thus, claimant’s time within which to serve the claim upon the Attorney General expired on October 7, 2005. Defendant’s motion papers demonstrate that claimant did not timely serve the claim upon the Attorney General as required by Court of Claims Act §§ 10 and 11. As the filing and service requirements contained in the Court of Claims Act are jurisdictional in nature (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]), defendant’s motion to dismiss the claim must be granted. Accordingly, it is

ORDERED, that Motion No. M-74051 is GRANTED and Claim No. 112153 is DISMISSED.


December 4, 2007
Albany, New York

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


Papers Considered:


(1) Claim, filed March 30, 2006;

(2) Motion to Dismiss, dated September 24, 2007;

(3) Affirmation in Support of Paul F. Cagino, AAG, dated September 24, 2007;

(4) Affidavit of Janet A. Barringer, sworn to September 19, 2007, with exhibits A-C.