Defendant moves to dismiss the claim of Lynel A. Parsons on the ground,
inter alia, that it was untimely served and filed. The claim alleges
that because of the State’s negligence, Mr. Parsons, an inmate at Sullivan
Correctional Facility, was unable to attend his aunt’s funeral on
September 18, 2006. Claimant failed to oppose this motion. Pursuant to
§10.3 of the Court of Claims Act, a claim such as this is required to be
served and filed within 90 days of accrual, unless a notice of intention is
served within the same time, in which case a claim must then be served within
two years of accrual. In the instant case, 90 days from September 18, 2006 is
December 17, 2006; since that was a Sunday, claimant’s deadline was
Monday, December 18, 2006. See General Construction Law §25-a.
Claimant did not serve a notice of intention until February 20, 2007. See
¶6 of the March 24, 2009 affirmation of James E. Shoemaker (the
“Shoemaker Aff.”) and exhibit B thereto. The notice of intention
was thus untimely served for the purposes of §10.3 of the Act. Even had
claimant timely served a notice of intention, his claim was then required to be
served within two years of accrual, i.e., by September 18, 2008. Parsons
did not serve and file his claim until February 13, 2009. See ¶6 of the
Shoemaker Aff. and exhibit A thereto.
“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 Lynel A. Parsons.
Accordingly, having reviewed the submissions
IT IS ORDERED that motion no. M-76442 be granted and claim no. 116431 be