Opinion
# 2021-054-024 Claim No. 135741 Motion No. M-96465
06-03-2021
GARY JONES v. THE STATE OF NEW YORK
GARY JONES Pro Se HON. LETITIA JAMES Attorney General for the State of New York By: Charles Lim, Assistant Attorney General
Synopsis
The State's unopposed motion to dismiss is granted, Notice of Intention to File a Claim filed untimely.
Case information
| UID: | 2021-054-024 |
| Claimant(s): | GARY JONES |
| Claimant short name: | JONES |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 135741 |
| Motion number(s): | M-96465 |
| Cross-motion number(s): | |
| Judge: | WALTER RIVERA |
| Claimant's attorney: | GARY JONES Pro Se |
| Defendant's attorney: | HON. LETITIA JAMES Attorney General for the State of New York By: Charles Lim, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 3, 2021 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on the State's unopposed motion to dismiss:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits
On April 24, 2020, the State was served with a Notice of Intention to File a Claim alleging that, during claimant's incarceration at Eastern NY Correctional Facility, claimant was wrongfully placed in restrictive confinement from June 14, 2019 until July 29, 2019 based upon a urinalysis that rendered a false positive for the presence of THC, an unauthorized substance (Ex. A). Claim No. 135741 was filed with the Court on December 14, 2020 and a copy of the claim was served upon the State on December 24, 2020 (Ex. B).
The State brings this pre-answer motion to dismiss the claim based upon, inter alia, claimant's failure to either timely serve a Notice of Intention to File a Claim or to timely serve and file a claim within 90 days after the accrual of the claim as required by Court of Claims Act § 10 (3), (3-b). Claimant did not submit any opposition to the State's motion to dismiss.
The service requirements set forth in Court of Claims Act §§ 10 and 11 are jurisdictional in nature and require strict compliance as a precondition of suit against the State (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). Both service and filing of the claim must occur within the statutory time period mandated by the Court of Claims Act (see id. at 724). A failure to comply with any of the service provisions is a jurisdictional defect compelling the dismissal of the claim (see Kolnacki v State of New York, 8 NY3d 277, 281 [2007] ["(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect"]; Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]).
In this matter, claimant's service of the Notice of Intention to File a Claim on April 24, 2020 was untimely because it was not received by the attorney general's office within 90 days after the accrual of the wrongful confinement claim on July 29, 2019, the date of claimant's release from restrictive confinement (Court of Claims Act §§ 10 [3], [3-b]; 11 [a] [i]; see Trammell v State of New York, 172 AD3d 1847 [3d Dept 2019][A claim for wrongful confinement accrues upon release from the confinement]). Accordingly, since the Notice of Intention to File a Claim was untimely, claimant could not avail himself of the two-year extension of time set forth in Court of Claims Act § 10 to serve and file the claim. Thus, the claim is untimely because it was not served and filed within 90 days after the accrual of the claim (Court of Claims Act § 10 [3], [3-b]; 11 [a] [i]; see Bennett v State of New York, 106 AD3d 1040 [2d Dept 2013]).
Accordingly, the State's unopposed motion to dismiss Claim No. 135741 is hereby GRANTED.
June 3, 2021
White Plains, New York
WALTER RIVERA
Judge of the Court of Claims