Opinion
# 2014-049-016 Claim No. 123871 Motion No. M-84687
04-03-2014
LASHARAN S. AMOS v. THE STATE OF NEW YORK
Lasharan S. Amos, Pro Se By: No Appearance Eric T. Schneiderman, New York State Attorney General By: Suzette C. Rivera, Assistant Attorney General
Synopsis
Defendant's motion to dismiss the claim as untimely is granted.
Case information
| UID: | 2014-049-016 |
| Claimant(s): | LASHARAN S. AMOS |
| Claimant short name: | AMOS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended sua sponte to reflect the only properly named defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123871 |
| Motion number(s): | M-84687 |
| Cross-motion number(s): | |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | Lasharan S. Amos, Pro Se By: No Appearance |
| Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: Suzette C. Rivera, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 3, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Lasharan S. Amos commenced this action pro se by claim filed February 3, 2014. The claim itself sets forth a litany of state and federal laws and constitutional provisions that claimant alleges were violated, but without any supporting factual allegations. The claim also states, without elaboration, that it accrued on December 2, 2013.
An affidavit is appended to the claim which states as follows:
?On December 2, 2012, claimant purchased a "job statues report [sic]" from the Office of Court Administration ("OCA"). Claimant was told that the OCA would provide an explanation of certain "non criminal charges" and explain the document for a fee of one million dollars.The claim also appends various documents, including a "jobs status report" issued by the Office of Court Administration ("OCA"), which contains a criminal history check and appears to have been ordered by Amos, with an "Order Date" of December 2, 2013.
?On May 12, 2010, claimant was diagnosed with a "severe spinal injury" caused by the New York City Transit Authority.
?On November 28, 2010, claimant was arrested by the New York Police Department ("NYPD"), and "the arraignment charges are consistent with the (CHRS) job report."
?On June 23, 2010, Judge Diana Johnson took certain steps, including the appointment of an administrator for the Estate of Hazel Amos Morgan, in "direct violation" of certain provisions of the Surrogate Court Practice Act and various treatises.
?The death certificate used in the Surrogate Court proceeding was corrected by claimant.
?The claimant is a "Beneficiary, Survivor and Joint Tenet [sic] signed by Joint Tenants in August of 1998," of which Judge Johnson was aware.
?On December 7, 2010, claimant was forced out of a property by the NYPD, placed under arrest, subject to an order of protection and forced to take various medical and psychological tests.
?On November 19, 2011, claimant was kidnaped by two NYPD officers, and held at Woodhull Hospital.
?Claimant has [on dates not specified] been "[i]nvoluntarily held in the [S]tate of New York by the State of New York."
Defendant filed a verified answer on February 20, 2014, in which it raised the defense of timeliness in its fourth affirmative defense. It now moves to dismiss on the grounds that the claim is time-barred, fails to state a cause of action, and does not comply with section 11 of the Court of Claims Act. Claimant has not filed any responsive papers.
The failure to timely comply with the service and filing requirements of the Court of Claims Act gives rise to a jurisdictional defect, compelling dismissal (see Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]), provided that the defect is raised with particularity either by motion to dismiss prior to service of the responsive pleading or in the responsive pleading itself (Court of Claims Act § 11[c]). Here, defendant has properly raised this defense in its answer.
Claimant has not served a notice of intention in this case. Thus, whether the claim is construed to allege negligence or intentional misconduct, it is only timely if it was filed and served within 90 days of accrual (see Court of Claims Act § 10[2] and [3]).
The claim here was served on January 13, 2014, and filed on February 3, 2014. As set forth above, all the events mentioned in the affidavit appended to the claim, for which a specific date is mentioned, took place more than 90 days before the commencement of this action. The claim does not indicate that any injuries that purportedly resulted from these events manifested themselves after the dates on which they occurred. On the face of the allegations in the supporting affidavit, then, the claim is untimely.
As noted, however, the claim itself lists an accrual date of December 2, 2013. The pleading is devoid, however, of any indication as to what occurred on that date, or how it connects to the other allegations set forth in the claim and supporting affidavit. While the appended documents appear to show that a Job Status Report was ordered from OCA on that date, it is impossible to discern from the claimant's filing what, if any, wrongdoing by defendant is alleged to have taken place at that time.
Claimant cannot establish the timeliness of the claim with an unsupported statement as to when it accrued, unconnected to any allegation that can support a colorable claim. The date of accrual is that on which damages are reasonably ascertainable (see Prisco v State of New York, 62 AD3d 978 [2d Dept 2009]). Nothing in the claim provides any basis as to why this may have occurred in December 2013, or on any other date that would render the claim timely.
By raising the defense with particularity and pointing to the specific dates on which claimant has alleged the specific acts in the claim took place, and the time of filing and service more than 90 days later, the State has made a prima facie showing that the claim is untimely. Claimant has not filed any response to defendant's motion, and has thus failed to rebut this showing, or demonstrate that any exception to the statutory time period applies (see Savarese v Shatz, 273 AD2d 219, 220 [2d Dept 2000] [once defendant has made prima facie showing that claim is untimely, burden shifts to claimant to demonstrate exception to time bar]).
In light of the foregoing, the claim before me fails to comply with the time limits set forth in section 10 of the Court of Claims Act, and is therefore dismissed. I need not address defendant's alternative bases for dismissal.
April 3, 2014
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion, Affirmation in Support and annexed exhibit.