Defendant's motion to dismiss claim as untimely served was granted. Claimant's motion for late claim relief was denied as statute of limitations expired.
|Claimant short name:||GONZALEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-77601, M-77743|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Franzblau Dratch, P.C.
By: Brian M. Dratch, Esquire
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Glenn C. King, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 25, 2010|
|See also (multicaptioned case)|
Defendant moves for an Order dismissing the claim herein on the ground that the claim was untimely served (Motion No. M-77601) pursuant to Court of Claims Act §§ 10 (3) and 11. Claimant moves for an Order granting leave to file a late claim (Motion No. M-77743).
Claimant, an inmate initially proceeding pro se, filed a claim on September 12, 2007 for injuries allegedly sustained when his hand became "jammed" in a pocket-setting sewing machine in the tailor shop of Franklin Correctional Facility on January 24, 2006 (defendant's Exhibit A, claim, ¶¶ 4, 14, 17, 18).
In support of its dismissal motion, defense counsel avers that "[w]hile claimant did properly serve a timely notice of intention and did timely file a claim with the Court, claimant's service of a copy of the claim upon the Attorney General occurred on May 30, 2008", more than two years following the accrual of the claim (affirmation of Glenn C. King dated December 4, 2009, ¶ 7).
Court of Claims Act § 10 (3) requires that
"[a] claim to recover damages for . . . personal injuries caused by the negligence or unintentional tort of an officer or employee of the state . . . shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim."
Defendant established, and claimant does not dispute, that the claim was not served upon the Attorney General until May 30, 2008, more than two years after the claim accrued. "Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ). Failure to comply with the literal requirements of Court of Claims Act § 10 or § 11 requires dismissal of the claim unless the waiver provisions of Court of Claims Act § 11 (c) apply. Pursuant to Court of Claims Act § 11(c), the time limitations contained in Court of Claims Act § 10 are waived unless raised with particularity either by a motion to dismiss prior to service of the responsive pleading or in the responsive pleading itself. No such waiver occurred here as the defendant raised the untimely service of the claim as a defense in its answer to the claim with the requisite particularity (defendant Exhibit B, answer to claim, fourth defense).(1) As a result, the defendant's motion is granted and the claim is dismissed.
Turning to the claimant's motion for late claim relief, Court of Claims Act § 10 (6) permits, in the Court's discretion, the filing of a late claim against the State "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." Inasmuch as the proposed claim seeks to recover damages for personal injuries, the three year statute of limitations set forth in CPLR § 214 applies. As a result, when claimant's motion for leave to file late claim was filed on January 25, 2010, the proposed claim for injuries sustained on January 24, 2006 was barred under the provisions of CPLR article two (see e.g. Hernandez v State of New York, 39 AD3d 709 ).
Accordingly, defendant's motion to dismiss the claim (Motion No. M-77601) is granted and the claimant's motion for late claim relief is denied (Motion No. M-77743).
March 25, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Motion No. M-77601
Motion No. M-77743
1. Defendant's fourth defense states the following:
"That this Court lacks subject matter jurisdiction over the claim as the claim is untimely in that although a timely notice of intention was properly served and filed and although the claim was timely filed, the claim was not timely served as required by Court of Claims Act Sections 10 (3) and 11 as it was served more than two years after the accrual of the claim."