Opinion
# 2015-038-524 Claim No. 118448 Motion No. M-86276
05-20-2015
JAMAHL CLARKE v. THE STATE OF NEW YORK
JAMAHL CLARKE, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Paul F. Cagino, Assistant Attorney General
Synopsis
Case information
| UID: | 2015-038-524 |
| Claimant(s): | JAMAHL CLARKE |
| Claimant short name: | CLARKE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 118448 |
| Motion number(s): | M-86276 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | JAMAHL CLARKE, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Paul F. Cagino, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 20, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, has filed this claim in which he alleges that he suffered personal injury due to the negligence of employees of defendant on December 23, 2009. The claim has been scheduled for trial on June 4, 2015, and defendant moves to dismiss the claim on jurisdictional grounds. Claimant opposes the motion.
A claim for damages caused by the negligence of State employees must be filed with the Clerk of the Court and served upon the Attorney General within ninety days after the accrual of the claim (see Court of Claims Act § 10 [3]). Alternatively, and within that same ninety-day period, the claimant may serve upon the Attorney General a written notice of intention to file a claim (id.). Service of the notice of intention or claim by mail is not complete until the documents have been received by the Attorney General (see Court of Claims Act § 11 [a] [i]). It is well established that the filing and service requirements of the Court of Claims Act must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]) and that the failure to comply with those requirements is a jurisdictional defect requiring dismissal of the claim (see id,; Lyles v State of New York, 3 NY3d 396, 400 [2004]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Suarez v State of New York, 193 AD2d 1037 [3d Dept 1993]).
This claim alleges that it accrued on December 23, 2009, and thus, a claim or a notice of intention to file a claim was required to have been served upon the Attorney General not later than March 23, 2010, and defendant's answer asserts that service of the claim and notice of intention was untimely (see Verified Answer, Fifth Defense). In support of its motion, defendant has established that both a notice of intention to file a claim and the claim itself were received in the Office of the Attorney General on May 27, 2010 (see Cagino Affirmation, ¶ 8; Exhibit A), and claimant's papers indicate that claimant mailed the notice of intention on May 18, 2010 (see Claim, ¶ 4; Claimant's Affidavit of Service). Thus, it is demonstrated that neither the notice of intention nor the claim was received by the Attorney General within 90 days of its accrual, and thus, the claim has been shown to be jurisdictionally defective.
Claimant's opposition to the motion to dismiss sets forth facts relating to his continued confinement in keeplock and his lack of access to his property, as well as lack of access to the law library or legal assistance, and he asserts that such hindered his ability to timely file and serve his claim (see Claimant's Notice of Answering Affidavits [sic], sworn to February 11, 2015). While an incarcerated inmate's lack of timely compliance with the service directives in an Order to Show Cause may provide an acceptable excuse that would avoid dismissal of a proceeding (see Matter of Martin v Annucci, 123 AD3d 1213, 1214 [3d Dept 2014]), the fatal jurisdictional flaw resulting from the failure to serve the claim or notice of intention within the time limits of Court of Claims Act § 10 (3) is not excusable.
Accordingly, it is
ORDERED, that defendant's motion to dismiss claim number 118448 is GRANTED, and it is further
ORDERED, that claim number 118448 is stricken from the June 4, 2015 trial calendar.
May 20, 2015
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Claim for Damages, number 118448, filed May 24, 2010, verified May 18, 2010;
(2) Verified Answer, verified July 6, 2010;
(3) Notice of Motion to Dismiss, dated February 4, 2015;
(4) Affirmation of Paul F. Cagino, AAG, in Support of Motion to Dismiss, dated February 4, 2015 with Exhibits A-B;
(5) Notice of Answering Affidavits [sic] of Jamahl Clarke, sworn to February 11, 2015, with Affidavits [sic] of Facts.