Opinion
# 2011-049-023 Claim No. 110610 Motion No. M-80696
12-23-2011
RAMOS v. THE STATE OF NEW YORK
Synopsis
Case information
UID: 2011-049-023 Claimant(s): FRANCISCO RAMOS Claimant short name: RAMOS Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 110610 Motion number(s): M-80696 Cross-motion number(s): Judge: David A. Weinstein Francisco Ramos, Pro Se Claimant's attorney: By: No Appearance Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Carol A. Cocchiola, Assistant Attorney General Third-party defendant's attorney: Signature date: December 23, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
On March 10, 2005 claimant Francisco Ramos filed a claim in this court alleging that he was beaten by several correction officers at Southport Correctional Facility on March 12, 2004. The affidavit of service he appended to his claim indicates that it was served by certified mail/return receipt requested in March 2005, and the defendant has submitted to the Court a stamped copy of the claim indicating that such service was, in fact, effected on March 7, 2005. The defendant now moves to dismiss the claim on the ground that it is time-barred.
The claim at issue clearly accrued on March 12, 2004, the date of the alleged assault (see Sumpter v State of New York, Claim No. None, Motion No. M-78880, UID No. 2010-040-065, McCarthy, J. [Nov. 29, 2010] [assault claim accrues on date the assault took place]; Calvin v State of New York, Claim No. None, Motion No. M-76387, UID No. 2009-030-528, Scuccimarra, J. [April 29, 2009][same]). The cause of action set forth in the claim is an intentional tort by a state officer, for which the relevant limitations period is governed by Court of Claims Act § 10(3-b). That provision states in pertinent part:
"A claim to recover damages for . . . personal injuries caused by the intentional tort of an officer or employee of the state while acting as such officer or employee, . . . shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim."
In sum, this claim was subject to a ninety-day limitations period, but was filed nearly a year after accrual, without prior service of a notice of intention. It is, therefore, untimely.
Timely service is a jurisdictional requirement that must be strictly construed, and the failure to file within the designated period is fatal to the claim (see Bush v State of New York, 60 AD3d 1244 [3d Dept 2009); Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Welch v State of New York, 286 AD2d 496 [2d Dept 2001]). While this defense may be waived if not raised with particularity in an answer or motion to dismiss (Court of Claims Act § 11[c]), that is not at issue here. Defendant raised the untimeliness of the claim as the first affirmative defense in its answer with the requisite clarity, as follows:
"[T]his Court lacks subject matter jurisdiction of the claim and personal jurisdiction over the defendant, the State of New York, as the claim is untimely in that neither the claim nor a notice of intention was served within ninety (90) days of the accrual of the claim as required by Court of Claims Act §§ 10 and 11."(Affirmation of Carol Cocchiola Ex. C).
Claimant has not responded to defendant's motion. His claim, however, makes clear that he simply misunderstood the requirements of the Court of Claims Act, stating that his claim was filed "within one (1) year after the claims occurred as required by law" (Claim § 27). In any case, he did not comply with the statutory time limits, and this Court therefore lacks jurisdiction over this claim.
In view of the foregoing, it is
ORDERED that motion no. M-80696 be granted and that claim no. 110610 be dismissed.
December 23, 2011
Albany, New York
David A. Weinstein
Judge of the Court of Claims
Papers considered
1. Defendant's Notice of Motion and Affirmation in Support, and annexed Exhibits.