This is a claim for damages to Emanuel Santana (hereinafter
“claimant”) as the result of the alleged wrongful confinement by
defendant from May 21, 2008 to June 2, 2008, in the Special Housing Unit
(hereinafter “SHU”) at Eastern Correctional Facility, Napanoch, New
Prior to answering the claim, defendant moves this Court to dismiss the claim
on two grounds
. First, defendant argues the
claim was not timely served and filed pursuant to Court of Claims Act
§§ 10 and 11. Defendant also argues that the claim should be
dismissed for claimant’s failure to verify the claim.
Claimant argues that he was required to exhaust his administrative remedies
prior to serving and filing a notice of intention or a claim. Claimant also
argues that the notice of intention was properly verified.
According to the defendant, claimant served the claim and notice of intention
on September 12, 2008, beyond the 90 days required by the Court of Claims
While the notice of intention is
verified by claimant, the claim was unverified.
The requirements of the Court of Claims Act are jurisdictional in nature and
must be strictly construed (Lurie v State of New York, 73 AD2d 1006,
aff’d 52 NY2d 849). The purpose of these requirements is to give
the State prompt notice of an occurrence and an opportunity to investigate the
facts and prepare a defense. It is well settled that if the service and filing
are not timely then the claim is subject to dismissal (Greenspan Bros. v
State of New York, 122 AD2d 249). Court of Claims Act §10(3) states
that the claim be filed and served or a notice of intention be served within 90
days of the date of accrual. If a notice of intention is served upon the
Attorney General’s office then claimant must serve and file his claim
within two (2) years of the date the claim accrued.
Court of Claims Act §10(9) is the only section which provides a
requirement for an inmate to exhaust his administrative remedies prior to filing
a claim. This section applies to damage or loss of an inmate’s personal
property which is in the care of defendant. It is inapplicable to the current
Claimant concedes that the date of his service upon defendant is beyond the 90
days required by the Court of Claims Act, if the date used is when he was
released from SHU. The Court finds the claim was not properly verified. As
previously noted, the requirements of the Court of Claims Act are to be strictly
construed. Court of Claims Act §11 requires the verification of a claim.
Therefore, the Court grants defendant’s request to dismiss the claim for
claimant’s failure to timely serve and file the claim and to properly
verify the claim. Claimant may make an appropriate motion pursuant to Court of
Claims Act §10(6).