Opinion
# 2015-041-023 Claim No. 117577 Motion No. M-86184
02-27-2015
LUIS CORREA v. THE STATE OF NEW YORK
NONE HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Paul F. Cagino, Esq. Assistant Attorney General
Synopsis
Motion to dismiss claim alleging that defendant's negligence caused claimant to be assaulted by a fellow inmate is granted where claim was not served within ninety days of accrual.
Case information
| UID: | 2015-041-023 |
| Claimant(s): | LUIS CORREA |
| Claimant short name: | CORREA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 117577 |
| Motion number(s): | M-86184 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | NONE |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Paul F. Cagino, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 27, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss the claim because neither the notice of intention to file claim (notice of intention) nor the claim itself was served within ninety days of accrual as required by the Court of Claims Act. Claimant has not opposed the defendant's motion.
The claimant's notice of intention alleges that on October 27, 2008 claimant was assaulted by a fellow inmate due to defendant's negligence in failing to protect claimant. The notice of intention was received by the Attorney General on September 3, 2009, more than ten months after accrual of the claim.
The claim was received by the Attorney General on October 22, 2009, nearly one year after accrual of the claim.
The claim must be dismissed because it was served more than ninety days after its accrual. Court of Claims Act §§ 10 3-a and 3-b, respectively, require that a claim to recover damages for personal injuries caused by the tortious conduct of an employee of the state, whether the defendant's conduct was intentional or unintentional, must be served upon the attorney general within ninety days after the accrual of the claim.
Courts have consistently held that "[a]s a condition of the State's limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling 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]).
The defendant's motion to dismiss is granted and the claim is dismissed.
February 27, 2015
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion to Dismiss, filed January 12, 2015;
2. Affirmation of Paul F. Cagino, dated January 7, 2015, and annexed exhibits.