Opinion
# 2021-032-040 Claim No. 135409 Motion No. M-96106
04-21-2021
PATRICK FALCO v. STATE OF NEW YORK
Law Offices of Douglas J. Fanning, LLP By: NO APPEARANCE Hon. Letitia James, Attorney General By: Felice V. Torres, AAG
Synopsis
Claim dismissed as untimely.
Case information
| UID: | 2021-032-040 |
| Claimant(s): | PATRICK FALCO |
| Claimant short name: | FALCO |
| Footnote (claimant name) : | |
| Defendant(s): | |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 135409 |
| Motion number(s): | M-96106 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Law Offices of Douglas J. Fanning, LLP By: NO APPEARANCE |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Felice V. Torres, AAG |
| Third-party defendant's attorney: | |
| Signature date: | April 21, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
The Court amends the caption sua sponte to reflect the only properly named defendant. --------
Decision
The instant claim was filed on September 29, 2020, seeking damages under the New York State Labor Law for injuries sustained by claimant on October 26, 2019 while he was performing work at the Manhattan Psychiatric Center on Wards Island. Defendant moves to dismiss the claim on the grounds that claim was not timely served. Claimant has not responded to the motion.
"A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept. 2011]; see Court of Claims Act § 10 [3], [3-b]). Court of Claims Act § 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." "[A]s suits against defendant are permitted only by virtue of its waiver of sovereign immunity and are in derogation of the common law, the failure to strictly comply with the filing or service provisions of the Court of Claims Act divests the court of subject matter jurisdiction and compels dismissal of the claim" (Caci v State of New York, 107 AD3d 1121, 1122 [3d Dept. 2013] [internal quotation marks and citations omitted]; see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Rodriguez v State of New York, 307 AD2d 657, 657 [3d Dept. 2003]).
Here, the claim accrued on October 26, 2019. Therefore, claimant was required to serve a notice of intention to file a claim or file and serve a claim no later than Friday, January 24, 2020--the ninetieth day following the accrual date of the claim. Claimant filed the claim on September 29, 2020 and served the claim on September 30, 2020--340 days after the accrual date (Affirmation of Felice V. Torres, AAG, Exhibit A). Accordingly, the claim is untimely and must be dismissed.
Based upon the foregoing, defendant's motion to dismiss the claim (M-96106) is GRANTED. Claim number 135409 is DISMISSED.
April 21, 2021
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion, dated October 15, 2020; and Affirmation in Support, affirmed by Felice V. Torres, AAG on October 15, 2020, with Exhibit A annexed thereto.