The Court granted defendant's pre answer uncontested motion to dismiss claim because it was untimely filed and served.
|Claimant short name:||BAUSANO|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DEBRA A. MARTIN|
|Claimant's attorney:||NO APPEARANCE|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: TAMARA B. CHRISTIE, AAG
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 8, 2021|
|See also (multicaptioned case)|
The following papers were read on defendant's motion to dismiss:
1. Notice of Motion with Affirmation of Tamara B. Christie, AAG and attached exhibits, filed September 29, 2020.
Before the Court is the defendant's pre answer motion to dismiss claim no. 128386 on the grounds that claimant failed to serve a notice of intention to file a claim or file or serve his claim within 90 days of accrual as required by the Court of Claims Act § 10 (3). Claimant did not submit answering papers. For the reasons set forth below, the defendant's unopposed motion is granted.
Claimant served a notice of intention to file a claim (NI) upon the Office of the Attorney General on June 29, 2015. He served his claim on August 15, 2016 and filed it with the Clerk of the Court on August 19, 2016. The NI alleged three different events regarding a back injury. First, claimant alleged that in August or September 2014, a correctional officer intentionally pushed him, causing him to fall backwards and injure his back. Second, around October 7, 2014, claimant allegedly went to the medical unit complaining of low back pain and that his right leg and foot were giving out. He wanted the doctor to order him full-time use of a wheel chair, but that request was denied, which claimant asserts constituted medical indifference. Third, on November 5, 2014 DOCCS was allegedly negligent in failing to transport him in a wheel chair accessible van, which led to him falling from the van while exiting it. Claimant alleged that on March 23, 2015, the neurosurgeon told him he needed extensive spine surgery, which was performed on May 14, 2015.
Thereafter, claimant filed his claim which repeated the allegations in the NI. Defendant answered the claim, generally denying the allegations and asserting eight affirmative defenses including the lack of this Court's jurisdiction due to the untimely service of the NI and the claim.
Court of Claims Act §10 requires that either a claim or an NI be served within 90 days of the accrual of a claim for an unintentional or intentional act. If an NI is timely served, the claim must then be filed and served within one year after the accrual of an intentional tort or two years after the accrual of a negligent or unintentional tort. (CCA § 10  and [3-b].) Here, the NI was served on June 29, 2015 was 273 days after the first alleged incident, 265 days after the second, and 237 days after the third. The claim was filed and served over one year thereafter. Since CCA § 10 is jurisdictional, it must be strictly construed and failure to follow the requirements mandates dismissal. (Dimovitch v State, 33 AD2d 146, 149 [4th Dept 1969]; Fraser v State of New York, UID No. 2017-040-023 [Ct Cl, McCarthy, J., Feb. 27, 2017].) Although CCA § 10 (6) provides a procedure for a claimant who has missed the 90-day deadline for filing an NI to move to file a late claim, the claimant here failed to do so or to even oppose the instant motion. Since the limitations period for all alleged causes of action has now expired, any such motion could not now be granted.
Accordingly, defendant's motion to dismiss (M-96002) is granted and Claim No. 128386 is dismissed with prejudice.
January 8, 2021
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims