Opinion
# 2014-010-086 Claim No. 124976 Motion No. M-85807
12-17-2014
GEORGE JOHNSON v. THE STATE OF NEW YORK
GEORGE JOHNSON Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Terrance K. DeRosa, Assistant Attorney General
Synopsis
Defendant's unopposed motion to dismiss granted, jurisdictional defect.
Case information
| UID: | 2014-010-086 |
| Claimant(s): | GEORGE JOHNSON |
| Claimant short name: | JOHNSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124976 |
| Motion number(s): | M-85807 |
| Cross-motion number(s): | |
| Judge: | Terry Jane Ruderman |
| Claimant's attorney: | GEORGE JOHNSON Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Terrance K. DeRosa, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 17, 2014 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on defendant's unopposed motion to dismiss:
Notice of Motion, Affirmation in Support and Exhibits
Claim No. 124976 alleges that on March 9, 2013, during claimant's incarceration at Sing Sing Correctional Facility, he was injured when the facility's food services staff provided claimant with a cup of "scolding hot water that was never secured properly with a lid" and the water spilled on claimant's hand causing him injury (Claim, ¶ 3). Claimant alleges negligence and medical malpractice for failure to properly treat his injury.
On May 13, 2013, claimant served defendant with a Notice of Intention to File a Claim (Ex. B). The notice of intention, however, failed to specify any dates of the alleged occurrence. The failure to specify a date of accrual renders the notice of intention jurisdictionally defective (see Prisco v State of New York, 62 AD3d 978 [2d Dept 2009] [failure to set forth date in notice of intention rendered it jurisdictionally defect and mandated dismissal]). Therefore, since the notice of intention was a nullity, it could not effectively extend the time within which to serve and file a claim pursuant to Court of Claims Act § 11 (b) (see Prisco v State of New York, 62 AD3d 978; Langner v State of New York, 65 AD3d 780 [3d Dept 2009] [deficient notice of intention does not extend time to serve and file a claim]). Consequently, the claim served upon defendant on August 22, 2014 was untimely because it was not served within 90 days of accrual (Court of Claims Act § 10 [3]); Bennett v State of New York, 106 AD3d 1040 [2d Dept 2013]). Failure to comply with the statutory mandates of Court of Claims Act §§ 10 and 11 is a jurisdictional defect compelling dismissal of the claim (id.).
Accordingly, defendant's unopposed motion to dismiss is hereby GRANTED.
December 17, 2014
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims