New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2009-016-017, Claim No. 115586, Motion No. M-76086


Claim was dismissed as it was not served on the State of New York

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):

Alan C. Marin
Claimant’s attorney:
Jose Rodriguez, Pro SeNo Appearance
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Roberto Barbosa, Esq., AAG
Third-party defendant’s attorney:

Signature date:
March 17, 2009
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves to dismiss on the ground that it was not served with claim no. 115586. In such claim, Jose Rodriguez alleges that he was injured when he fell over a “pallet jack” at Sullivan Correctional Facility on December 24, 2007. On August 7, 2008, defendant received a letter from the Chief Clerk of the New York State Court of Claims, which stated that Mr. Rodriguez had filed claim no. 115586 with the Clerk’s Office on July 28, 2008. See ¶3 of the January 5, 2009 affirmation of Roberto Barbosa (the “Barbosa Aff.”) and exhibit 1(B) thereto.

Defendant maintains that it has never been served with this claim. See ¶¶5-7 of the Barbosa Aff and exhibits 1 and 1(A) thereto. Claimant, who failed to oppose this motion, does not dispute that he failed to serve defendant with claim no. 115586.[1]

Section 10.3 of the Court of Claims Act requires a claim such as this to be served within 90 days of accrual, which was not done in this case. “It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and accordingly, must be strictly construed . . .” Byrne v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted). See also Mallory v State of New York, 196 AD2d 925, 601 NYS2d 972 (3d Dept 1993). In view of the foregoing, this court lacks jurisdiction over the claim of Jose Rodriguez.

Accordingly, having reviewed the submissions[2], IT IS ORDERED that claim no. 115586 be dismissed.

March 17, 2009
New York, New York

Judge of the Court of Claims

  1. [1]Attached to the claim are two affidavits of service, but they appear to relate to an earlier claim of Mr. Rodriguez, claim no. 114984.
  2. [2]The following were reviewed: defendant’s notice of motion with affirmation in support and exhibits 1, 1(A) and 1(B).