New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2007-041-041, Claim No. 113852, Motion Nos. M-73688, M-73717, M-73754, CM-73810


Synopsis


Claim is dismissed based upon failure to timely file and serve the claim.

Case Information

UID:
2007-041-041
Claimant(s):
JAMES PETTUS
Claimant short name:
PETTUS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113852
Motion number(s):
M-73688, M-73717, M-73754
Cross-motion number(s):
CM-73810
Judge:
FRANK P. MILANO
Claimant’s attorney:
JAMES PETTUSPro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Michael T. Krenrich, Assistant Attorney General
Third-party defendant’s attorney:

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

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant has submitted two motions requesting assignment of counsel to prosecute his claim. Defendant moves to dismiss the claim on the grounds that the Court lacks jurisdiction because the claim was not timely filed and served and additionally asserts that the Court lacks subject matter jurisdiction over the substance of the claim and that the claim fails to state a cause of action. Claimant cross-moves for summary judgment on the claim. The claim alleges that claimant was unlawfully denied parole on September 19, 2006. Although claimant alleges a claim accrual date of June 8, 2007, there is nothing stated in the claim which supports the claimed accrual date. The Court finds that the claim accrued on September 19, 2006 when claimant was denied parole.

The claim was served on the Attorney General, and filed with the Clerk of the Court of Claims, on June 15, 2007.

Pursuant to Court of Claims Act § 10 (3):
“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. . . .”
Court of Claims Act § 10 (3-b) provides that:
“A claim to recover damages for injuries to property or for personal injuries caused by the intentional 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 . . . .”
Whether the alleged wrongful conduct was intentional or unintentional, the claim was required to be served and filed within ninety (90) days of its accrual on September 19, 2006.

Courts have consistently held that “[a]s a condition of the State’s limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim” (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 [2005]).

The claimant has failed to timely file and serve the claim. The Court lacks jurisdiction over the claim.

In view of the foregoing it is unnecessary to consider either the defendant’s other grounds for dismissal or the claimant’s two motions for assignment of counsel and motion for summary judgment.

Defendant’s motion to dismiss is granted. The claim is dismissed.



September 4, 2007
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Claimant’s Notice of Motion #M-73688, filed June 15, 2007;
  2. Affidavit of Claimant, sworn to April 17, 2007, with annexed exhibits;
  3. Claimant’s Notice of Motion #M-73717, filed July 12, 2007;
  4. Affidavit of Claimant, sworn to April 17, 2007, with annexed exhibits;
  5. Defendant’s Notice of Motion #M-73754, filed July 20, 2007;
  6. Affirmation of Michael T. Krenrich, dated July 20, 2007, with annexed exhibits;
  7. Claimant’s Notice of Cross-Motion #CM-73810, filed August 6, 2007;
  8. Affidavit of Claimant sworn to July 26, 2007, with annexed exhibits;
  9. Affirmation in Opposition of Michael T. Krenrich, dated August 20, 2007, with annexed exhibit.