|Claimant short name:||TRAPANI|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Damian Trapani, Pro Se|
|Defendant's attorney:||Hon. Andrew M. Cuomo, NYS Attorney General
By: Carol A. Cocchiola, Assistant Attorney General, Of Counsel
|Third-party defendant's attorney:|
|Signature date:||September 24, 2010|
|See also (multicaptioned case)|
Defendant brings a motion to dismiss Claim No. 118415 on the ground that claimant has failed to timely file and serve his claim in accordance with the Court of Claims Act. Claimant, an inmate proceeding pro se, opposes the motion. For the reasons set forth below, the Court grants defendant's motion and dismisses Claim No. 118415.
The underlying claim alleges that claimant slipped and fell on December 14, 2009, while an inmate at Southport Correctional Facility, as a result of defendant's negligence. Despite claimant's admission that the slip and fall occurred on December 14, 2009, claimant has set forth an accrual date of April 7, 2010. He filed his claim on May 17, 2010 and served the same upon the Attorney General's Office on May 21, 2010. Defendant now moves to dismiss the claim on the basis that claimant failed to file and serve his claim by March 14, 2010, which is ninety days from December 14, 2009, the date of the alleged slip and fall. In opposition, claimant states that while under normal circumstances his claim would have accrued on December 14, 2009, he relied on an information packet which erroneously stated that a claim accrues on the date of the final determination of a facility complaint/claim.
Court of Claims Act § 10 (3) states, in pertinent part, that a claim to recover damages for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee shall be filed and served upon the Attorney General within ninety days after the accrual of such claim, unless the 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.
Court of Claims Act § 11 (a)(i) provides that the claim shall be filed with the Clerk of the Court, and a copy shall be served upon the Attorney General within the times provided for filing with the Clerk of the Court.
Court of Claims Act § 11 (c) states that any objection or defense based upon the failure to comply with (i) the time limitations contained in section ten of the Court of Claims Act, (ii) the manner of service requirements, or (iii) the verification requirements is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading.
Compliance with the filing and service requirements contained in sections 10 and 11 of the Court of Claims Act is a jurisdictional prerequisite to bringing and maintaining an action in the Court of Claims (Buckles v State of New York, 221 NY 418 ), and failure to comply constitutes a fatal jurisdictional defect requiring dismissal (see Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]; Finnerty v New York State Thruway Auth., 75 NY2d 721 ; Dreger v New York State Thruway Auth., 177 AD2d 762 [3d Dept 1991], affd 81 NY2d 721 ). Ignorance of the law is not an acceptable explanation for the failure to timely serve a claim (see Matter of Robinson v State of New York, 35 AD3d 948 [3d Dept 2006]).
In the present case, the claim accrued on December 14, 2009. No notice of intention to file a claim is alleged to have been served. Accordingly, claimant should have filed and served his claim on or before March 14, 2010, or in this case, on March 15, 2010, as March 14, 2010 was a Sunday. Claimant's failure to file and serve his claim by said date constitutes a fatal jurisdictional defect and warrants dismissal of the claim (see Suarez v State of New York, 193 AD2d 1037 [3d Dept 1993]).
Based upon the foregoing, defendant's motion to dismiss (M-78471) is granted and Claim No. 118415 is dismissed.
1. Notice of Motion and Affirmation of Carol A. Cocchiola, AAG, dated June 25, 2010, with Exhibit;
2. Reply Affidavit, sworn to by claimant on July 12, 2010, with Exhibit.
Papers Filed: Claim, filed on May 17, 2010; Order of Hon. Richard E. Sise, Presiding Judge, filed on June 8, 2010.
September 24, 2010
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims