New York State Court of Claims

New York State Court of Claims

PAULING v. THE STATE OF NEW YORK, #2008-033-324, Claim No. 115358, Motion Nos. M-75488, CM-75590


Synopsis



Case Information

UID:
2008-033-324
Claimant(s):
SHAWN PAULING
Claimant short name:
PAULING
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115358
Motion number(s):
M-75488
Cross-motion number(s):
CM-75590
Judge:
James J. Lack
Claimant’s attorney:
Shawn Pauling, Pro Se
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Belinda A. Wagner, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 24, 2008
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim by Shawn Pauling (hereinafter “claimant”) for injuries due to the alleged negligence of the defendant. The accident took place on December 9, 2007, at Eastern Correctional Facility, Napanoch, New York. Claimant slipped and fell on ice on the walkway in the outdoor recreation area.

Claimant moves this Court to strike defendant’s answer and for summary judgment[1].


Defendant cross-moves for an order dismissing the claim due to claimant’s failure to timely serve and file the claim[2].

The requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Lepkowski v State of New York, 1 NY3d 201; Kolnacki v State of New York, 8 NY3d 277 [3]; Lurie v State of New York, 73 AD2d 1006, aff’d 52 NY2d 849). The purpose of these requirements is to give the State prompt notice of an occurrence and an opportunity to investigate the facts and prepare a defense. It is well settled that if the filing is not timely then the claim is subject to dismissal (Greenspan Bros. v State of New York, 122 AD2d 249). Court of Claims Act §10(3) states that the claim or notice of intention shall be served and filed within 90 days of the date of accrual. If a notice of intention is served upon the Attorney General’s Office then claimant must serve and file the claim within 2 years of the date the claim accrued.

According to the papers before the Court, claimant first served a Notice of Intention upon the Attorney General’s Office on February 1, 2008. While this service is within the 90 day time limit, the Notice of Intention was served by ordinary mail, which is not good service (Court of Claims Act §11[a]). Thereafter, claimant, admittedly served the Notice of Intention on March 12, 2008, upon the Attorney General’s Office. While service was accomplished in an accepted manner, it was beyond the 90 days from the date of accrual. Claimant then served a claim upon the Attorney General’s Office on June 12, 2008. This claim was unverified. A verified claim was served on the Attorney General’s Office on June 26, 2008, by regular mail. The claim was not filed in the Clerk’s Office until June 9, 2008.

As previously noted, the requirements of the Court of Claims Act are jurisdictional in nature. The failure to properly or timely serve and/or file the claim deprives the court of subject matter jurisdiction. In the instant case, the Notice of Intention was served upon defendant on the 94th day and, therefore, did not serve to extend claimant’s time to serve and file a claim. The claim was filed in the Clerk’s Office 183 days after the matter accrued.

Based upon the foregoing, the Court grants defendant’s cross-motion to dismiss the claim. Claimant’s motion is denied as moot.


December 24, 2008
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].The following papers were read and considered on claimant’s motion: Notice of Motion for Summary Judgement dated August 1, 2008 and filed September 4, 2008; Affidavit in Support of Motion for Summary Judgement of Shawn Pauling sworn to August 7, 2008 and filed September 4, 2008.
[2].The following papers were read and considered on defendant’s cross-motion: Notice of Cross Motion dated September 22, 2008 and filed September 24, 2008; Affirmation in Opposition to Claimant’s Motion for Summary Judgment and in Support of Defendant’s Cross Motion to Dismiss of Belinda A. Wagner, Esq. with annexed Exhibits A-F dated September 22, 2008 and filed September 24, 2008.
[3].Kolnacki was effectively reversed by legislation, however, the reasoning of the Court of Appeals applies to other aspects of Court of Claims Act §11(b).