This matter comes before the court on defendant’s pre-answer motion to
dismiss the claim, pursuant to CPLR Rule 3211 (a) (2) and CPLR Rule 3211 (a)
(8), on the grounds that there is a lack of both personal and subject matter
jurisdiction. It is the contention of defendant that the claim was not timely
filed and therefore the court lacks jurisdiction. Claimant opposes the motion
and seeks sanctions for a frivolous motion.
The factual allegations concerning timeliness are not disputed. Claimant seeks
damages for personal injuries allegedly sustained as a result of a slip and fall
occurring on December 22, 2004 at the Oneida Correctional Facility. A Notice of
Intention was served by certified mail, return receipt requested, on January 28,
Thereafter, the claim was personally served on the Attorney General on December
21, 2006. The claim was filed in the office of the Clerk of the Court of Claims
on December 22, 2006.
It is the contention of the Attorney General that Court of Claims Act § 10
requires that, under the facts of this case, the claim had to be both served and
filed within two years from the date of the accrual. The Attorney General
further asserts that since the claim accrued on December 22, 2004, it was
necessary for both service and filing to be completed on or before December 21,
The claimant does not dispute the above stated facts. However, claimant does
dispute defendant’s legal conclusion that filing and service had to be
completed on December 21, 2006 rather than on December 22, 2006. The
well-established law supports claimant’s position.
Court of Claims Act § 10 (3) provides that:
[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 [emphasis added].
General Construction Law § 20 provides in relevant part:
[a] number of days specified as a period from a certain day within which or
after or before which an act is authorized or required to be done means such
number of calendar days exclusive of the calendar day from which the
reckoning is made. . . . In computing any specified period of time from a
specified event, the day upon which the event happens is deemed the day from
which the reckoning is made. The day from which any specified period of time
is reckoned shall be excluded in making the reckoning [emphasis
Quite simply put, since the claimed slip and fall occurred on December 22, 2004
the claimant would have had through the day of December 22, 2006 within which to
perfect the claim (Bacalokonstantis v Nichols, 141 AD2d 482;
Fitzpatrick v State of New York, UID No. 2001-018-086, Claim No. 103293,
Motion No. M-62756).
As the Court of Appeals has explained, with even more simplicity than the
General Construction Law, “[t]he first day is now excluded in the
computation of years as well as in the computation of days, weeks or
months” (Tismer v New York Edison Co., 228 NY 156, 164).
Defendant’s pre-answer motion to dismiss the claim is denied.
More troubling to the court though, is the procedural context in which this
motion has come to be heard. According to the opposition papers submitted by
claimant’s counsel, following the service of defendant’s motion the
claimant’s counsel gave the State an opportunity to withdraw its motion
via a letter dated January 16, 2007, which letter outlined and reviewed the
applicable law in opposition to the defendant’s position. In the letter,
claimant’s counsel advised that if the motion was not withdrawn before a
formal response was required, that claimant’s counsel would seek
sanctions. Claimant’s counsel stated that this letter was later followed
with telephone contact. Nevertheless, according to claimant’s attorney,
the Assistant Attorney General refused to withdraw the motion.
In addition to opposing the State’s motion, claimant’s counsel
seeks sanctions on the grounds that defendant’s motion is both frivolous
and sanctionable. Under the circumstances as relayed by claimant’s
counsel, sanctions may in fact be justified. However, the court has not
received comment from the Attorney General on the sanction issue. As a result,
and in the absence of a hearing, it is premature to decide the sanction issue at
this time (22 NYCRR § 130-1.1 [d]). Furthermore, it would unfairly burden
claimant’s counsel to be forced to attend a hearing in Oneida County, far
from his legal offices, for the sole purpose of determining sanctions, if any.
As a result, the claimant’s request for sanctions is adjourned sine
die, with the issue to be considered at a later date, when both counsel are
in court for other matters related to this case.