New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2009-038-527, Claim No. 116194, Motion No. M-76109


M-76124


Synopsis


Intentional assault claim dismissed for failure to timely file claim within 90 days of accrual.

Case Information

UID:
2009-038-527
Claimant(s):
LAMOUNT GREEN
Claimant short name:
GREEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116194
Motion number(s):
M-76109M-76124
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
LAMOUNT GREEN, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Thomas R. Monjeau, AAG
Third-party defendant’s attorney:

Signature date:
March 19, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim alleges that claimant was physically assaulted by several deputy sheriffs on October 26, 2007, and further alleges that claimant’s personal property was lost on that same date. The claim was filed on December 11, 2008, and it asserts that a notice of intention to file this claim was served upon the Attorney General on January 7, 2008. Defendant has made a pre-answer motion to dismiss the claim on various grounds, including assertion of a statute of limitations defense, jurisdictional defects arising from late filing of the claim and the claim’s failure to comply with substantive pleading requirements, and failure to state a cause of action against the State of New York because there is no allegation of actionable conduct against any person for whom the State might bear liability. Claimant has not submitted opposition to the motion. A claim for damage to property or for personal injury due to the negligence or intentional torts of employees of the State must be filed with the Clerk of the Court and served upon the Attorney General within ninety days after the accrual of the claim (Court of Claims Act § 10 [3]; [3-b]). Alternatively, and within that same ninety-day period, the claimant may serve upon the Attorney General a written notice of intention to file a claim (id.). It is well established that the filing and service requirements of the Court of Claims Act must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]) and that the failure to comply with those requirements is a jurisdictional defect requiring dismissal of the claim (see id.; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Brown v State of New York, UID #2007-038-558, Claim # 107770, Motion No. M-73868, DeBow, J. [Sept. 10, 2007]; Farnsworth v State of New York, UID # 2006-031-091, Claim # 110822, Motion # M-71631, Minarik, J. [Dec. 29, 2006]).

On January 7, 2008, claimant served the Attorney General with a notice of intention to file a claim which alleged a physical assault by “N.Y.P.D. offers [sic]” on October 9, 2007 (see Monjeau Affirmation, Exhibit A). The reference to the N.Y.P.D., coupled with another reference to “S.I.”, leads the Court to the conclusion that the notice of intention refers to an alleged incident that occurred in Staten Island or New York City (see id.). The claim that was filed with the Court on December 11, 2008 alleges an assault by “deputy sheriffs” in Albany, New York on October 26, 2007 – and not an alleged assault by NYPD officers in New York City on October 9, 2007, and further alleges a loss of property on that date. Clearly, the notice of intention that was served upon the Attorney General does not refer to the incidents giving rise to the claim that has been filed with the Court. As noted above, to be timely filed and therefore jurisdictionally sound, a claim must be filed with the Court and served upon the Attorney General within 90 days of the accrual of the claim. Ninety days after October 26, 2007 fell on January 24, 2008, and thus, as this claim was filed on December 11, 2008, it was not timely filed and must be dismissed.

In light of this conclusion that the claim is jurisdictionally defective due to untimely filing, defendant’s remaining arguments for dismissal of the claim need not be addressed. That part of claimant’s motion No. M-76124 requesting a reduction of the filing fee has already been granted by Order of Hon. Richard E. Sise, filed December 24, 2008. To the extent that claimant’s motion seeks appointment of counsel to prosecute the claim, that part of claimant’s motion is now moot and will be denied. Accordingly, it is

ORDERED, that Motion No. M-76124 is DENIED, and it is further

ORDERED, that Motion No. M-76109 is GRANTED, and Claim No. 116194 is DISMISSED.

March 19, 2009
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered
:


(1) Claim No. 116194, filed December 11, 2008;

(2) Order of Hon. Richard E. Sise, filed December 24, 2008;

(3) Notice of Motion to Dismiss, dated January 8, 2009;

(4) Affirmation of Thomas R. Monjeau, AAG, dated January 8, 2009, with exhibits A-B;

(5) Affidavit of Service of Motion of Ellen Lyons, sworn to January 8, 2009;

(6) Application for Reduced Filing Fee (Motion No. M-76124), with attachments.