New York State Court of Claims

New York State Court of Claims

FUNDERBURK v. STATE OF NEW YORK, #2009-018-034, Claim No. 116415, Motion No. M-76576


Synopsis


The claim is dismissed as untimely.

Case Information

UID:
2009-018-034
Claimant(s):
MICHAEL R. FUNDERBURK
1 1.The Court has sua sponte amended the caption to reflect the State of New York as the only proper Defendant.
Claimant short name:
FUNDERBURK
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the State of New York as the only proper Defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116415
Motion number(s):
M-76576
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
MICHAEL R. FUNDERBURKPro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: BONNIE GAIL LEVY, ESQUIREAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 11, 2009
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant brings this pre-answer motion to dismiss the claim for untimeliness. Claimant has not opposed the motion.

The claim asserts that Claimant’s cause of action accrued in February of 2006; however, the six is crossed out and four is written in, each time reference to 2006 is made in the claim. Defendant argues that no notice of intention was ever served, and whether the 2004 date or the 2006 date is used, the claim is untimely. This is true whether the claim is viewed as one seeking redress for the State’s negligence or an intentional tort, as in either case, a notice of intention to file a claim must be served, or a claim must be filed and served within 90 days of the date of accrual (see Court of Claims Act §§ 10[3] or [3-b]). Here, the claim was filed on February 11, 2009, and it was personally served upon the Attorney General on March 11, 2009. Filing and service did not occur within 90 days of February 2004 or 2006, and therefore, the claim is untimely. The requirements for timely filing and service of a claim are strictly construed jurisdictional prerequisites to the institution and maintenance of an action against the State (Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607; cf Buckles v State of New York, 221 NY 418). The failure to timely serve and file a claim is a fatal jurisdictional defect which cannot be ignored by the Court (Id).

Accordingly, based upon the foregoing, Defendant’s motion is GRANTED and the claim is DISMISSED.


August 11, 2009
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:

1. Notice of Motion.

2. Affirmation of Assistant Attorney General Bonnie Gail Levy, Esquire in support with exhibits attached thereto.

3. No response was received from Claimant.