Opinion
# 2015-032-008 Claim No. 124967 Motion No. M-85699
02-23-2015
JERRY ADAMS v. THE STATE OF NEW YORK
Jerry Adams, Pro Se Hon. Eric T. Schneiderman, NYS Attorney General By: Paul F. Cagino, Assistant Attorney General, Of Counsel
Synopsis
Case information
| UID: | 2015-032-008 |
| Claimant(s): | JERRY ADAMS |
| Claimant short name: | ADAMS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124967 |
| Motion number(s): | M-85699 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Jerry Adams, Pro Se |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Paul F. Cagino, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | February 23, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves this Court for an order dismissing the claim pursuant to CPLR Rule 3211(a) (2), (7) and (8) for lack of personal and subject matter jurisdiction and failure to state a cause of action. Claimant opposes the motion. For the reasons set forth below, defendant's motion is granted and Claim No. 124967 is dismissed.
The claim seeks money damages for the alleged negligence of defendant in failing to provide certain treatments to claimant, failing to document the treatments that were provided and failing to present the records of treatments to the Parole Board for consideration of claimant's parole release.
The time period for serving a claim alleging an unintentional tort upon the Attorney General is 90 days from the date of accrual, unless the claimant, within said time, serves the Attorney General with a written notice of intention to file the claim, in which event the claim would need to be filed and served upon the Attorney General within two years after the date of accrual (Court of Claims Act §10 [3]). Claims and notices of intention to file a claim must be served upon the Attorney General by personal service or certified mail, return receipt requested (Court of Claims Act §11[a]).
Compliance with the service requirements contained in sections 10 and 11 of the Court of Claims Act is a jurisdictional prerequisite to bringing and maintaining an action in the Court of Claims and failure to comply constitutes a fatal jurisdictional defect requiring dismissal (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037 [3d Dept 1993]).
In the present case, claimant alleges the date of accrual to be May 6, 2014 (Claim, ¶ 3). Accordingly, he had until August 4, 2014, by which to either file and serve his claim or serve a notice of intention to file a claim.
However, claimant states that he served a notice of intention to file a claim upon the Attorney General's Office and the Court Clerk's office on September 8, 2014 (Claim, ¶ 10). Defendant states that it was served with the claim and the notice of intention to file a claim, both dated September 8, 2014, on September 11, 2014. In support of its position, defendant provides a copy of the envelope enclosing the claim and notice of intention to file a claim, which reflects that postage was affixed on September 9, 2014 and the envelope was received on September 11, 2014. Regardless of whether the claim and notice of intention to file a claim were served on September 8, 2014 or September 11, 2014, the service was clearly beyond the statutory 90 days from the date of accrual. Accordingly, the claim is untimely and must be dismissed.
Based upon the foregoing, defendant's motion to dismiss (Motion No. M-85699) is granted and Claim No. 124967 is dismissed.
February 23, 2015
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion to Dismiss in Lieu of Answer, dated September 25, 2014; Affirmation in Support of Motion to Dismiss in Lieu of Answer, of Paul F. Cagino, AAG, dated September 25, 2014, with Exhibit.
2. Motion in Opposition to Dismissal, of Jerry Adams dated September 29, 2014.
Papers Filed: Claim, filed September 11, 2014; and Order of Richard E. Sise, Acting Presiding Judge, filed September 23, 2014.