New York State Court of Claims

New York State Court of Claims
ANSELMO v. THE STATE OF NEW YORK, # 2018-041-091, Claim No. 132055, Motion No. M-93131

Synopsis

Defendant's motion to dismiss claim in lieu of answer is granted where claim is barred by Court of Claims Act 10.

Case information

UID: 2018-041-091
Claimant(s): ALEX ANSELMO
Claimant short name: ANSELMO
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 132055
Motion number(s): M-93131
Cross-motion number(s):
Judge: FRANK P. MILANO
Claimant's attorney: NONE
Defendant's attorney: HON. BARBARA D. UNDERWOOD
New York State Attorney General
By: Paul F. Cagino, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 18, 2018
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Defendant moves to dismiss the claim in lieu of answering because the claim is untimely pursuant to Court of Claims Act sections 10 (3) and (3-b). Claimant has not appeared in opposition to the defendant's motion to dismiss.

On October 23, 2017, claimant served on defendant a notice of intention to file a claim consisting of a single paragraph alleging that defendant's employees had committed "assault and battery" against claimant at Clinton Correctional Facility on September 22, 2017.

Court of Claims Act 10 (3-b) provides at relevant part as follows:

"A claim to recover damages for . . . personal injuries caused by the intentional 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 one year after the accrual of such claim."

Courts have consistently held that "[a]s a condition of the State's limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim" (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 [2005]).

As set forth in Court of Claims Act 10 (3-b), service of the notice of intention to file a claim on October 23, 2017 provided claimant a one-year period, measured from the accrual date of September 22, 2017, in which to serve his intentional tort claim.

Claimant served his claim alleging "negligence, excessive force, and assault and battery of the state committed by its employees" on the defendant on October 1, 2018, more than one year after the accrual date of the intentional tort causes of action alleging assault and battery and excessive force. The intentional tort causes of action are barred by Court of Claims Act 10 (3-b) and are dismissed.

The claim's negligence cause of action must be dismissed pursuant to Court of Claims Act 10 (3), which provides as follows:

"A claim to recover damages for injuries to property or 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."

The claimant's negligence cause of action was not included in the notice of intention to file a claim served on October 23, 2017 and the negligence claim/cause of action was therefore required to be served on defendant within ninety days of its accrual on September 22, 2017.

The negligence claim/cause of action was not served on the defendant until October 1, 2018, more than ninety days after its accrual.

The defendant's motion to dismiss the claim is granted. The claim is dismissed.

December 18, 2018

Albany, New York

FRANK P. MILANO

Judge of the Court of Claims

Papers Considered:

1. Defendant's Notice of Motion to Dismiss in Lieu of Answer, filed November 2, 2018;

2. Affirmation of Paul F. Cagino, dated November 2, 2018, and annexed exhibits.