Opinion
# 2017-045-035 Claim No. 129583 Motion No. M-90363
08-09-2017
HARRY BROWN v. THE STATE OF NEW YORK
Harry Brown, Pro Se No Appearance Hon. Eric T. Schneiderman, Attorney General By: Jeane L. Strickland Smith, Assistant Attorney General
Synopsis
Defendant's motion to dismiss pro se inmate claim for assault. Claim served four years after incident.
Case information
| UID: | 2017-045-035 |
| Claimant(s): | HARRY BROWN |
| Claimant short name: | BROWN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129583 |
| Motion number(s): | M-90363 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Harry Brown, Pro Se No Appearance |
| Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: Jeane L. Strickland Smith, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 9, 2017 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion; Defendant's Affirmation in Support with annexed Exhibit A and the filed Claim.
Defendant, the State of New York, has brought this motion pursuant to CPLR § 215 and Court of Claims Act (CCA) § 10 seeking an order dismissing the claim. Claimant, Harry Brown, a pro se unmate, has failed to oppose the motion.
Claimant alleges in his claim that on three separate occasions, March 21, 2013, May 5, 2013 and May 12, 2013, he was assaulted by various correction officers.
A notice of intention to file a claim was not served upon defendant in this matter. Claimant served the claim upon defendant on March 31, 2017. A review of the Court file shows that the claim was filed on April 17, 2017.
Defendant seeks dismissal of the claim due to claimant's failure to comply with the time requirements contained within CCA § 10 (3-b).
CCA § 10 (3-b) requires that a claim sounding in intentional tort must be filed with the Court and served upon the Office of the Attorney General within 90 days after the accrual of such claim unless the claimant shall within such time serve a notice of intention to file a claim upon the Office of the Attorney General. If a claimant has served a notice of intention to file a claim, the claim shall be filed within one year after the accrual of an intentional tort.
The Court of Appeals has long held that "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]).
Claimant's failure to strictly comply with the statutory requirements set forth in Court of Claims Act §§ 10 (3-b) deprives this Court of jurisdiction over the claim (Lepkowski v State of New York, 1 NY3d 201 [2003]; Weaver v State of New York, 82 AD3d 878 [2d Dept 2011]; see also Smiley v North Gen. Hosp., 59 AD3d 179 [2d Dept 2009]; Cagliostro v Madison Sq. Garden, Inc., 73 AD3d 534 [1st Dept 2010]; Schetzen v Robotsis, 273 AD2d 220 [2d Dept 2000]). Accordingly, the Court is constrained to dismiss the claim.
Therefore, for the foregoing reasons, defendant's motion to dismiss is granted.
August 9, 2017
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims