New York State Court of Claims

New York State Court of Claims

McALLISTER v. THE STATE OF NEW YORK, #2008-016-016, Claim No. 107806, Motion No. M-74765


Synopsis



Case Information

UID:
2008-016-016
Claimant(s):
THEODORE McALLISTER
Claimant short name:
McALLISTER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107806
Motion number(s):
M-74765
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Theodore McAllister, Pro SeNo Appearance
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Carol A. Cocchiola, Esq., AAG
Third-party defendant’s attorney:

Signature date:
April 17, 2008
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves to dismiss the claim of Theodore McAllister on the ground that the claim was not served on the State. In his claim, Mr. McAllister alleges that because of defendant’s negligence, items of his personal property were lost at Sullivan Correctional Facility. In his claim, McAllister states an accrual date of May 30, 2003. Pursuant to §10.9 of the Court of Claims Act, claimant would be required to serve and file his claim within 120 days of such date. Claimant, who submitted no opposition papers on this motion, does not dispute that to date, he has failed to serve the State of New York with his claim.

“It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and accordingly, must be strictly construed . . .” Byrne v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted). See also Mallory v State of New York, 196 AD2d 925, 601 NYS2d 972 (3d Dept 1993). In sum, the Court lacks jurisdiction over this claim. Accordingly, having reviewed the submissions[1], IT IS ORDERED that claim no. 107806 be dismissed.



April 17, 2008
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The court reviewed defendant’s notice of motion with affirmation in support and exhibits 1, A and B.