New York State Court of Claims

New York State Court of Claims

KRZYKOWSKI v. THE STATE OF NEW YORK, #2008-038-625, Claim No. 109297, Motion No. M-75514


Defendant’s motion to dismiss granted; claim not served until more than 90 days after accrual.

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:
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:
December 10, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for injuries allegedly sustained on July 26, 2003 when he cut his finger on a floor grate in the kitchen of the Coxsackie Correctional Facility as a result of defendant’s negligence. Defendant moves to dismiss the claim because it was not timely served on the Attorney General. Claimant has submitted a reply in opposition to the motion. A claim for damages from personal injury due to the State’s negligence must be filed with the Clerk of the Court and served upon the attorney general within ninety days after the accrual of the claim (Court of Claims Act § 10 [3]). Alternatively, and within that same ninety-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]; Suarez v State of New York, 193 AD2d 1037 [3d Dept 1993]).

This claim accrued on the date of injury, July 26, 2003, and ninety days thereafter was October 24, 2003. The claim that was filed and served on May 3, 2004 states that he had served on the Clerk of the Court and the Attorney General a notice of intention to file a claim (Cagino Affirmation, Exhibit A, at ¶ 5). However, defendant denied that allegation in its verified answer (Cagino Affirmation Exhibit B, at ¶ 2) and it maintains that it has not been served with a notice of intention to file a claim in this action (Cagino Affirmation, ¶ 3). Claimant has not rebutted defendant’s contention that a notice of intention to file this claim was not served on the Attorney General, and therefore, the Court must conclude that claimant did not serve a notice of intention to file the claim. The claim was not filed and served until May 3, 2004, well beyond the 90-day period.

Claimant’s opposition to defendant’s motion to dismiss for lack of jurisdiction is without merit.[1] The fourth defense in defendant’s Verified Answer (see Cagino Affirmation, Exhibit B) specifically asserts a lack of subject matter and personal jurisdiction on the grounds asserted in this motion. Nor is the motion untimely, as a motion to dismiss for lack of subject matter jurisdiction (see CPLR 3211[a][2]) may be made at any time (see CPLR 3211[e]). Claimant’s opposition on the grounds that the claim states a cause of action and that a trial is required on this claim are not pertinent to, nor controlling of, this motion to dismiss. Because claimant has not demonstrated that he served on the Attorney General the claim or a notice of intention to file a claim within 90 days of the date of accrual, the Court lacks jurisdiction over the claim and it must be dismissed. Accordingly, it is

ORDERED, that Motion No. M-75514 is GRANTED, and Claim No. 109297 is DISMISSED.

December 10, 2008
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 109297, filed May 3, 2004;

(2) Verified Answer, filed June 9, 2004;

(3) Notice of Motion, dated August 15, 2008;

(4) Affirmation in Support of Paul F. Cagino, AAG, dated August 15, 2008, with exhibits A-B;

(5) Verified Reply to Defendant’s Answer, and Motion to Dismiss, sworn to September 4, 2008.

[1]. To the extent claimant has identified his submission as a “Verified Reply to Defendant’s Answer,” it is noted that the CPLR makes no provision for such a pleading (see CPLR, Article 30). The submission will be treated only as opposition to the motion.