New York State Court of Claims

New York State Court of Claims

OWUSU v. THE STATE OF NEW YORK, #2008-038-604, Claim No. 113094, Motion No. M-74459


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
VERNON & GINSBURG, LLPBy: Sanem Ozdural, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 30, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The instant claim was filed on December 11, 2006 against defendant, claimant’s employer, seeking damages for defendant’s alleged intentional and unintentional torts in connection with claimant’s employment. This Court previously denied defendant’s motion to dismiss the claim because defendant had not adequately demonstrated the date of accrual or the applicable period of time within which the claim was required to be served upon the Attorney General (see Owusu v State of New York, UID # 2007-038-563, Claim No. 113094, Motion No. M-73640, DeBow, J. [Oct. 1, 2007]). By Order to Show Cause dated January 23, 2008, the Court directed that claimant show cause why the claim should not be dismissed for lack of jurisdiction, and defendant was permitted the opportunity to submit papers, as well. Claimant has demonstrated that he mailed a “Notice of Claim”[1] on or about December 8, 2005, and that it was received by the Attorney General’s office not later than December 13, 2005 (see Ozdural Affirmation, Feb. 26, 2008, Exhibits 1 and 2). These facts are not disputed by defendant (see Cagino Affirmation, March 31, 2008, ¶ 8). Defendant now argues that the Notice of Claim was not served with 90 days of the date of accrual of the claim, and that the claim must therefore be dismissed for lack of jurisdiction. Defendant suspended claimant from his employment without pay on or about December 22, 2004 (see Claim No. 113094, Exhibit CL-A1, ¶ 14; Cagino Affirmation, Exhibit E, at 3). All of the allegations of the claim relate to incidents and conduct of defendant that occurred prior to that date. Either the claim or a notice of intention to file a claim must have been served upon the Attorney General within 90 days of the date of accrual of the claim (see Court of Claims Act §§ 10 [3]; [3-b]). If measured from the date of claimant’s suspension from employment, the 90-day period expired on March 22, 2005, long before claimant served the Attorney General with the Notice of Claim in December of 2005. Accordingly, the dispositive inquiry is whether there was a continuing wrong that extended the accrual date or otherwise tolled the commencement of the 90-day period set forth in Court of Claims Act § 10.

The claim asserts that defendant violated Civil Service Law § 75 (3) by suspending claimant for a period in excess of thirty days, and claimant argues that the ongoing suspension extended the accrual date of his claim (see Ozdural Reply Affirmation, April 17, 2008, ¶ 5). This argument misapplies the “continuing wrong” doctrine, which provides that a cause of action may accrue when the last of a series of wrongful acts occurs (see Kimmel v State of New York, 49 AD3d 1210 [4th Dept 2008]; Brown v State of New York, 125 AD2d 750, 751-752 [3d Dept 1986]; see also Matter of Gallo v Kennedy, 4 AD2d 505, 507 [1st Dept 1957], affd 4 NY2d 949 [1958]). The many acts of wrongful conduct alleged by claimant all occurred prior to his suspension. Thus, the allegedly wrongful suspension on December 22, 2004 was the latest event upon which his claim accrued, or perhaps the alleged violation of Civil Service Law § 75(3) gave rise to a cause of action on January 22, 2005 when claimant’s suspension exceeded the 30-day period allowed by that statute. However, the fact that claimant has not received salary or other benefits of his employment as a result of his allegedly wrongful suspension (see Claim No. 113094, ¶ 4; Exhibit Cl-A2) does not extend the accrual date, because the application of the continuing wrong doctrine “may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct” (Selkirk v State of New York, 249 AD2d 818, 819 [3d Dept 1998]; see e.g. Commack Self-Service Kosher Meats v State of New York, 270 AD2d 687, 688 [3d Dept 2000]).

A claim for damages arising from the intentional or unintentional torts of an employee of the State must be filed with the Clerk of the Court of Claims and served upon the Attorney General within 90 days after the accrual of the claim (Court of Claims Act §§ 10 [3]; [3-b]). Alternatively, and within that same 90-day period, the claimant may serve upon the Attorney General a written notice of intention to file a claim (id.). It is well established that the filing and service requirements of the Court of Claims Act must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]) and that the failure to comply with those requirements is a jurisdictional defect requiring dismissal of the claim (see id.; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Brown v State of New York, UID # 2007-038-558, Claim No. 107770, Motion No. M-73868, DeBow, J. [Sept. 10, 2007]; Davis v State of New York, UID # 2006-042-503, Claim No. 107278, Motion No. M-72510, Siegel, J. [Jan. 9, 2007]). Claimant’s Notice of Claim was not timely served because it was not served within 90 days of the latest possible accrual date, nor was the claim filed within that period, and the claim must be dismissed. In light of the foregoing, the Court need not address the disputed issue of whether Claim No. 113094 was, in fact, served upon defendant in December 2006.

Accordingly, it is

ORDERED, that Claim No. 113094 is DISMISSED.

June 30, 2008
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 113094, filed December 11, 2006;

(2) Decision and Order, Claim No. 113094, Motion Nos. M-73638 and M-73640,

UID # 2007-038-563;

(3) Order to Show Cause (Motion No. M-74459), dated January 23, 2008;

(4) Affirmation of Sanem Ozdural, Esq., dated February 26, 2008, with Exhibits 1-2;

(5) Reply Affirmation of Paul F. Cagino, Esq., dated March 31, 2008, with Exhibits A-E;

(6) Affidavit of Janet A. Barringer, sworn to March 28, 2008, with Exhibits A-C;

(7) Reply Affirmation of Sanem Ozdural, Esq., dated April 17, 2008;

(8) Affidavit of Kwame Owusu, sworn to April 17, 2008.[2]

[1]. The proper name of this process is “Notice of Intention to File a Claim” (see Court of Claims Act § 10).
[2]. Claimant’s affidavit addresses an allegedly erroneous entry in defendant’s records. Claimant does not request the Court’s intervention, nor does this Court possess the authority to order expungement or other equitable relief. Defendant is, however, encouraged to review claimant’s affidavit and take appropriate action.