New York State Court of Claims

New York State Court of Claims

MERCEDES v. STATE OF NEW YORK, #2008-039-087, Claim No. 110479, Motion No. M-75042


Synopsis


Defendant’s motion to dismiss the claim pursuant to Court of Claims Act § 10 (3) and 11 and CPLR 3211 (a) (2) and (8) on the grounds that the Court lacks personal and subject matter jurisdiction is granted. It having been determined that the last day to file the claim with the Court and serve a copy upon the Attorney General was February 3, 2005, and since the proof before the Court establishes that the claim was not filed with the Court until February 8, 2005 and was not received by the Attorney General until February 9, 2005, the Court is constrained to find that it lacks jurisdiction of the claim pursuant to Court of Claims Act § 10 (3)

Case Information

UID:
2008-039-087
Claimant(s):
VICTOR MERCEDES
Claimant short name:
MERCEDES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110479
Motion number(s):
M-75042
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Victor Mercedes, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Michael T. KrenrichAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 5, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

A claim for damages was filed with the Court of Claims on February 8, 2005. Claimant alleges therein that on November 5, 2004 he sustained injuries when he was attacked by a fellow inmate at Clinton Correctional Facility. Issue was joined, and defendant now moves the Court for an order dismissing the claim pursuant to Court of Claims Act § 10 (3) and 11 and CPLR 3211 (a) (2) and (8) on the grounds that the Court lacks personal and subject matter jurisdiction. More specifically, defendant argues that the claim was not served upon the Attorney General within 90 days of the accrual of the claim and must therefore be dismissed. The motion was made returnable on June 18, 2008, and the Court has not received any opposition to the motion from claimant.

Court of Claims Act §10 (3) provides, in relevant part, that a claim must be “filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim.” Moreover, “[s]ervice by certified mail, return receipt requested, upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general” (Court of Claims Act § 11 [a][i]). It is well settled that “ ‘the requirements of the Court of Claims Act as to the filing of claims must be strictly construed because the question of timeliness of filing is jurisdictional’ ” (Pristell v State of New York, 40 AD3d 1198, 1198 [2007], quoting Roberts v State of New York, 11 AD3d 1000, 1001 [2004]; see also Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]).

In support of its motion, defendant offers a copy of the claim that was served upon the Attorney General and the envelope that was used to mail the claim. Both the claim and the envelope bear time stamps with the name “NYS Office of the Attorney General Litigation Bureau” and a date of February 9, 2005 - the date the claim was received by the Attorney General. The envelope also reveals that the claim was served by certified mail, return receipt requested and bears two postage stamps, only one of which is legible with a date of February 7, 2005.

The claim having accrued on November 5, 2004, and there being no proof before the Court that a notice of intention to file a claim was served upon the Attorney General, the Court finds that, pursuant to Court of Claims Act § 10 (3), the last day to file the claim with the Court and serve a copy upon the Attorney General was February 3, 2005. Since the proof before the Court establishes that the claim was not filed with the Court until February 8, 2005 and was not received by the Attorney General until February 9, 2005, the Court is constrained to find that it lacks jurisdiction pursuant to Court of Claims Act § 10 (3).

Accordingly, it is hereby ordered that M-75042 is granted and the claim is dismissed.


August 5, 2008
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Notice of Motion dated June 2, 2008; and
  2. Affirmation in Support of Motion to Dismiss by Michael T. Krenrich, AAG, affirmed on June 2, 2008 with exhibit.