New York State Court of Claims

New York State Court of Claims

McCLARY v. THE STATE OF NEW YORK, #2008-040-071, Claim No. 115361, Motion No. M-75225


Synopsis


Claim dismissed as untimely served and filed as Notice of Intention was not served within 90 days of accrual.

Case Information

UID:
2008-040-071
Claimant(s):
KWAN McCLARY 02A2880
Claimant short name:
McCLARY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115361
Motion number(s):
M-75225
Cross-motion number(s):

Judge:
CHRISTOPHER J. MCCARTHY
Claimant’s attorney:
Kwan McClary, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Belinda A. Wagner, Esq., AAG
Third-party defendant’s attorney:

Signature date:
October 15, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, Defendant’s pre-answer motion to dismiss this pro se Claimant’s Claim based upon Claimant’s failure to comply with the service requirements of Court of Claims Act §§ 10 and 11 is granted. The remainder of the motion is denied as moot.

The Claim, which was filed with the Clerk of the Court on June 10, 2008, alleges that, in March 2007, Claimant completed an “Aggression Workbook” while incarcerated at Upstate Correctional Facility in Malone, New York, and that, in August 2007, he received a letter that the “Aggression Workbook Program has been noted and shall remain part of my record” (Claim, ¶ 2).

Claimant further asserts that, in November 2007, he appeared before the “Time Allowance Committee” (id.) and his good time was withheld for failing to take the “Aggression Workbook” program (id.). Exhibit C attached to the Claim is a copy of the Report of the Time Allowance Committee Review, dated December 18, 2007, stating Claimant “refused ART Aggression Workbook” and recommending the loss of available good time.

Claimant further alleges that, as a result of the State’s negligence, he was denied conditional release and has been “illegally incarcerated as of March 28th, 2007” (Claim, ¶ 2).

Pursuant to Court of Claims Act § 10(3), the provision applicable to personal injury actions caused by negligence or unintentional torts of State employees, Claimant was required to file and serve his Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim. In either case, Claimant was required to initiate action within 90 days of the Claim’s accrual.

Section 11(a)(i) of the Court of Claims Act provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in § 10 of the Court of Claims Act, either personally or by certified mail, return receipt requested. It is well established that failure to timely serve the Attorney General in strict compliance with Court of Claims Act § 11 gives rise to a jurisdictional defect (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]).

Pursuant to Court of Claims Act § 11(c), however, any such defect is waived unless it is raised with particularity as an affirmative defense either by motion to dismiss prior to service of the responsive pleading, or in the responsive pleading itself (see Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).

In her affirmation submitted in support of the State’s motion, Defense counsel asserts that the Attorney General’s office received a Notice of Intention to File a Claim on April 10, 2008 (see Ex. 1 attached to Motion). The Claim was served upon the Defendant on June 9, 2008 (see Ex. 2 attached to Motion). Here, it is alleged that the Claim accrued on November 27, 2007, but it is clear, from the documentation submitted with the Claim, that the Claim accrued on December 18, 2007, when the committee rendered its determination. Thus, Claimant had 90 days from December 18, 2007 to timely serve his Notice of Intention to File a Claim. Therefore, Claimant had until Monday, March 17, 2008 to timely serve the Notice of Intention. As stated above, it was served on April 10, 2008, 24 days late. As the Notice of Intention was not timely served, it did not extend Claimant’s time to serve and file the Claim. Thus, the Claim was not timely served and filed as required by Court of Claims Act § 10(3).

Claimant has not submitted any opposition to this Motion.

Court of Claims Act § 10 is more than a statute of limitations; it is a jurisdictional prerequisite to bringing and maintaining an action in this Court (DeMarco v State of New York, 43 AD2d 786 [4th Dept 1973] affd 37 NY2d 735(1975); Antoine v State of New York, 103 Misc 2d 664 [Ct Cl 1980]). Failure to timely comply with the statutory filing requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal (Buckles v State of New York, 221 NY 418 [1917];Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], lv denied 64 NY2d 607[1985]). This defect was timely and properly raised with particularity, by this pre-Answer motion, in accordance with Court of Claims Act § 11(c).

Based upon the foregoing, Defendant’s motion is granted and the Claim is dismissed for failure to timely serve and file the Claim in accordance with Court of Claims Act § 10(3).


October 15, 2008
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read and considered by the Court on the State’s motion to dismiss the Claim:

Papers Numbered


Notice of Motion, Affirmation
and Exhibits Attached 1


Filed Papers: Claim