Opinion
# 2011-041-023 Claim No. 119844 Motion No. M-79970
07-21-2011
EZIKEL ROSS v. THE STATE OF NEW YORK
Synopsis
Claim served beyond the sixty day period provided in decision and order granting late claim relief is dismissed as untimely. Case information
UID: 2011-041-023 Claimant(s): EZIKEL ROSS Claimant short name: ROSS Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119844 Motion number(s): M-79970 Cross-motion number(s): Judge: FRANK P. MILANO Claimant's attorney: NONE HON. ERIC T. SCHNEIDERMAN New York State Attorney General Defendant's attorney: By: Michael T. Krenrich, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: July 21, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant moves to dismiss the claim, asserting that claimant failed to serve the claim in a timely manner upon the Attorney General. Claimant has not appeared in opposition to the motion.
The Decision and Order of this Court, filed March 14, 2011, granted claimant leave to file and serve a late claim and stated that "claimant is directed to file and serve his claim in compliance with §§ 11 and 11-a of the Court of Claims Act within sixty (60) days of the filing of this decision and order with the Clerk of the Court of Claims."
The claim was not served on the Attorney General until May 16, 2011, more than sixty days after the filing of the Decision and Order.
The requirements of timely filing and service of a claim are a condition of the State's limited waiver of sovereign immunity and are strictly construed; failure to comply with those requirements is a jurisdictional defect requiring 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]).
In view of the claimant's failure to timely serve the claim, the defendant's motion to dismiss is granted. The claim is dismissed.
July 21, 2011
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion to Dismiss, filed June 8, 2011;
2. Affirmation of Michael T. Krenrich, dated June 8, 2011, and annexed exhibit.