New York State Court of Claims

New York State Court of Claims

MARTIN v. THE STATE OF NEW YORK, #2008-042-504, Claim No. 112253, Motion No. M-74402


Synopsis


This matter comes before the court by the defendant for a pre-answer motion to dismiss claim pursuant to CPLR Rule 3211 (2), (7) and (8) for lack of personal jurisdiction and/or subject matter jurisdiction and for failure to state a cause of action. The motion is unopposed and the court finds that the claim is not timely and is hereby dismissed.

Case Information

UID:
2008-042-504
Claimant(s):
ANTHONY T. MARTIN
Claimant short name:
MARTIN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112253
Motion number(s):
M-74402
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
ANTHONY T. MARTIN, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 22, 2008
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This matter comes before the court on defendant’s motion to dismiss the claim pursuant to CPLR Rule 3211 (2), (7), and (8) for lack of personal jurisdiction and/or subject matter jurisdiction and for failure to state a cause of action. This motion is unopposed. The court has considered the following papers:

  1. Notice of Motion, filed November 15, 2007
  2. Affirmation of Joel L. Marmelstein, Esq., dated November 14, 2007
  3. Exhibits A - D, annexed to the moving papers
__________________________________

The underlying claim seeks damages of ten million dollars for personal injuries allegedly sustained by claimant while an inmate at the Marcy Correctional Facility. The claim fails to state a date of accrual of the action. However, claimant also served a notice of intention to file a claim, which stated the date of accrual of the claim as December 9, 2005.

The defense notes that the notice of intention to file a claim is not even dated until March 20, 2006 and was not mailed to the Attorney General’s office until March 21, 2006 (the date of the postmark) or received by the Attorney General until March 23, 2006.

The claim itself apparently was verified on April 18, 2006 and filed with the Clerk of the Court of Claims on April 25, 2006[1]. However, the claim was not served on the Attorney General until it was received on October 9, 2007.

It is the contention of the Attorney General that inasmuch as Court of Claims Act Section 10 (3) required claimant to serve either the notice of intention to file a claim or the claim itself on the Attorney General within 90 days from the date of accrual, and claimant has failed to meet that deadline, this claim is not timely. The Attorney General also notes that the failure to state the date of accrual in the claim itself is improper.

The court agrees that this claim is not timely, as neither the notice of intention to file a claim nor the claim itself were served upon the Attorney General within 90 days from the date of accrual as set forth in the notice of intention to file a claim. It should be noted that the presumed date of accrual is also supported by the Inmate Grievance Complaint attached to the claim.

In order for the claim to comply with the requirements of Court of Claims Act § 10 (3), either a notice of intention to file a claim or a claim would have to have been served upon the attorney general within ninety days of the date of accrual of the claim. “The notice of claim requirements in Court of Claims Act §§ 10 and 11 are jurisdictional prerequisites to the maintenance of a claim and must be strictly construed” (Phillips v State of New York, 237 AD2d 590). Inasmuch as the notice of intention to file a claim was not served until more than 104 days after the accrual of the claim, and the claim was not served until more than a year and a half after the accrual of the claim, this claim is not timely and is hereby dismissed.



April 22, 2008
Utica, New York
HON. NORMAN I. SIEGEL
Judge of the Court of Claims




[1].The Attorney General’s affirmation, at paragraph numbered “2”, mistakenly refers to the filing date as May 9, 2006 rather than the correct date of April 25, 2006. The affirmation, at this same paragraph, also refers to the claim by Claim Number 112318, rather than the correct Claim Number 112253. Nevertheless, these two mistakes are not substantive and do not affect the defendant’s argument or the ruling of this court.