New York State Court of Claims

New York State Court of Claims

AZ-ZAHID v. THE STATE OF NEW YORK, #2009-015-134, Claim No. 115859, Motion Nos. M-75881, M-75882


Defendant's motion to dismiss claim as untimely was granted and claimant's motion for poor person status was denied as moot.

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):
M-75881, M-75882
Cross-motion number(s):

Claimant’s attorney:
Salim Nafis Az-Zahid, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 17, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves for an order dismissing the instant claim as untimely pursuant to CPLR 3211 (a) (2) and (8) (Motion No. M-75882). Claimant moves for an order granting him permission to proceed as a poor person and for the assignment of counsel (Motion No. M-75881). For the reasons which follow, defendant's motion is granted and claimant's motion is denied as moot. On September 19, 2008 the claimant, an inmate proceeding pro se, filed a claim alleging that he reported to sick call at the Great Meadow Correctional Facility infirmary on various dates between February 29, 2008 and April 23, 2008 for an eye infection and was prescribed eye drops, first by a physician's assistant and then by a physician. According to the claimant, neither medical provider examined his eyes prior to prescribing the eye drops which, in any event, were ineffective in alleviating the infection. He was then seen by an optometrist who was visiting the facility on April 26, 2008. The claimant allegedly informed the optometrist of the two medications previously prescribed for him by the physician's assistant and physician and the optometrist told him "to stop using them because they were not the proper medications to use. I was scheduled for a follow-up with him but was transferred from the facility before the appointment" (claim, ¶ 2).

In support of its motion for dismissal counsel for the defendant avers that on September 19, 2008 the following three documents were served, all in the same envelope: a Claim, a Notice of Intention to File a Late Claim, and a Late Notice of Intention to File a Claim. The claim sets forth an accrual date of April 23, 2008.

Court of Claims Act § 10 (3) requires that a claim to recover damages for personal injuries caused by negligence or unintentional tort be filed with the Clerk and served upon the Attorney General within 90 days of accrual, unless a notice of intention to file a claim was served within this time frame. Here, the claim together with documents denominated a "Notice of Intention To File a Late Claim" and a "Late Notice of Intention to File Claim" were served on the Attorney General and filed with the Clerk on September 19, 2008. As a result, neither a claim nor a notice of intention to file a claim was served within 90 days of accrual. Although the claimant requests that this fact be overlooked in the interests of justice, it is well-settled that "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). Accordingly, the defendant's motion to dismiss the claim is granted.

As the result of this determination, claimant's motion for poor person status and the assignment of counsel is denied as moot.[1]
Based on the foregoing, defendant's motion to dismiss the claim as untimely is granted and the claim is dismissed. Claimant's motion for poor person status and the assignment of counsel is denied.

February 17, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated September 16, 2008;
  2. Affidavit of Salim Nafis Az-Zahid sworn to September 3, 2008.


  1. Notice of motion dated October 29, 2008;
  2. Affirmation of Belinda A. Wagner dated October 29, 2008 with exhibit;
  3. "Answering Papers" of Salim Nafis Az-Zahid, sworn to December 15, 2008;
  4. Reply affirmation of Belinda A. Wagner dated December 30, 2008.

[1]. By Order of the Honorable Thomas J. McNamara dated September 30, 2008, claimant's application for a filing fee reduction was denied on the ground that the claimant is possessed of sufficient resources to pay the statutory filing fee.