New York State Court of Claims

New York State Court of Claims

PARSONS v. THE STATE OF NEW YORK, #2009-016-026, Claim No. 116431, Motion No. M-76442


Synopsis


Motion to dismiss claim on the ground that it was untimely was granted.

Case Information

UID:
2009-016-026
Claimant(s):
LYNEL A. PARSONS
Claimant short name:
PARSONS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116431
Motion number(s):
M-76442
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Lynel A. Parsons, Pro SeNo Appearance
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: James E. Shoemaker, Esq., AAG
Third-party defendant’s attorney:

Signature date:
May 19, 2009
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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[1], IT IS ORDERED that motion no. M-76442 be granted and claim no. 116431 be dismissed.


May 19, 2009
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The court reviewed defendant’s notice of motion with affirmation in support and exhibits A through C. Claimant submitted no opposition papers.