New York State Court of Claims

New York State Court of Claims

LOPEZ v. STATE OF NEW YORK, #2008-018-631, Claim No. 115023, Motion No. M-74886


Synopsis


Claim dismissed §§ 10 & 11.

Case Information

UID:
2008-018-631
Claimant(s):
ISHMAEL LOPEZ
Claimant short name:
LOPEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115023
Motion number(s):
M-74886
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
Ishmael LopezPro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 28, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant makes a pre-answer motion to dismiss the claim for failure to timely serve a

claim or notice of intention. Claimant opposed the motion, on the grounds that he could not timely serve a claim or notice of intention because of his injuries.

Defendant asserts that a claim in this matter was received by the Attorney General by certified mail, return receipt requested on March 26, 2008. The claim reflects an accrual date of September 13, 2007, and seeks damages for personal injuries sustained while working in the mess hall at Gouverneur Correctional Facility. A copy of the envelope in which the claim was sent is attached to defendant’s papers.[1]

Claimant previously had served a notice of intention dated January 23, 2008, by certified mail, return receipt requested, which was received by the Attorney General on January 28, 2008. The notice of intention also reflected an accrual date of September 13, 2007. Defendant attaches a copy of the envelope in which the notice of intention was mailed.[2]

Court of Claims Act § 10(3) requires that a notice of intention claiming damages for personal injuries as a result of the State’s negligence must be properly served within 90 days of the date of accrual. Only then is claimant’s time for filing and serving the claim extended for two years from the date of accrual (Court of Claims Act § 10[3]). Using the accrual date of September 13, 2007, a timely notice of intention would have had to be served upon the Attorney General by December 12, 2007. As the notice of intention was not received by the Attorney General until January 28, 2008, it was not timely served and did not extend the time for claimant to serve and file a claim. The filing and service of the claim on March 26, 2008 was untimely. Compliance with §§ 10 and 11 of the Court of Claims Act constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and must be strictly construed (Byrne v State of New York, 104 AD2d 782).

Defendant’s motion is GRANTED and the claim must be DISMISSED. Claimant may seek relief under Court of Claims Act § 10(6).


August 28, 2008
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:

1. Notice of Motion.

2. Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney General

in support with exhibits attached thereto.

3. Claimant’s opposition to Motion to Dismiss Claim sworn to April 30, 2008.


[1]. The claim envelope is attached to defendant’s supporting affirmation as Exhibit D.
[2]. The notice of intention envelope is attached to defendant’s supporting affirmation as Exhibit B.