Claim was dismissed for having been untimely served and filed.
|Claimant short name:||LOPEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Fernando Lopez, Pro Se
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Carol A. Cocchiola, AAG
|Third-party defendant's attorney:|
|Signature date:||June 30, 2010|
|See also (multicaptioned case)|
In this claim, Fernando Lopez alleges that commencing November 26, 2002, he was wrongly confined for 42 days in keeplock and special housing unit status at Woodbourne Correctional Facility. Defendant moves to dismiss the claim on the ground that it was not timely served and filed. Mr. Lopez does not oppose the motion.
Defendant states that on April 1, 2004, it was served with a notice of intention by certified mail, return receipt requested and that thereafter, on June 7, 2004, it was served with the claim. The claim was filed on June 21, 2004.
"A cause of action for wrongful confinement within the prison context accrues upon the termination of confinement." Carlisle v State of New York, Ct Cl, December 5, 2006 (unreported, claim no. 109283, motion no. M-72193,UID #2006-034-612(1) , Hudson, J.). Forty-two days from November 26, 2002 is January 7, 2003.
Section 10 of the Court of Claims Act (the "Act") provides that a claim such as this must be filed with the Clerk of the Court and served on the Office of the Attorney General within 90 days of accrual unless a notice of intention is served within such time frame, after which the claim must then be served and filed within two years. Ninety days from January 7, 2003 is April 7, 2003. Claimant, who submitted no papers on this motion, does not dispute that he did not serve his notice of intention until nearly a year following this deadline.
"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 (2d Dept 1984), lv denied 64 NY2d 607 (1985) (citations omitted). In view of the foregoing, this court lacks jurisdiction over the claim of Fernando Lopez.
Accordingly, having reviewed the submissions(2) , IT IS ORDERED that motion no. M-78245 be granted and that claim no. 109515 be dismissed.
June 30, 2010
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. This and other decisions of the Court of Claims may be found on the court's website: www.nyscourtofclaims.state.ny.us.
2. The court reviewed defendant's notice of motion with affirmation in support and exhibits A through C. Claimant submitted no opposition papers.