Opinion
# 2016-015-188 Claim No. 128187 Motion No. M-89048
11-30-2016
MICHAEL WEBB v. THE STATE OF NEW YORK
Michael Webb, Pro Se No Appearance Honorable Eric T. Schneiderman, Attorney General By: Glenn C. King, Esquire Assistant Attorney General
Synopsis
Claim was dismissed as untimely and for improper service
Case information
| UID: | 2016-015-188 |
| Claimant(s): | MICHAEL WEBB |
| Claimant short name: | WEBB |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128187 |
| Motion number(s): | M-89048 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Michael Webb, Pro Se No Appearance |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Glenn C. King, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 30, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss the instant claim pursuant to CPLR 3211 (a) (2) and (8) on the ground the claim was not timely filed or served.
Claimant, a pro se inmate, seeks damages for an assault and battery by correction officers at Great Meadow Correctional Facility on June 9, 2015.
Defense counsel states that a notice of intention to file a claim was served on the Attorney General on July 16, 2015. A claim was thereafter filed on July 8, 2016 and, according to defense counsel, served upon the Attorney General on July 5, 2016 (affirmation of Glenn C. King, ¶ 4; defendant's Exhibit A). Defendant contends that although the notice of intention was properly served within 90 days of the date the claim accrued, the claim was not filed or served within one year following the claim's accrual as required by Court of Claims Act § 10 (3-b). In addition, defendant contends that the claim was improperly served by regular mail rather than by personal service or certified mail, return receipt requested, as required.
Court of Claims Act § 10 (3-b) requires that a claim asserting an intentional tort be filed and served within 90 days following the accrual of the claim unless a notice of intention to file a claim is served within that time period, "in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim." The State's waiver of immunity under Section 8 of the Court of Claims Act is conditioned upon claimant's compliance with the specific conditions to suit set forth in article II of the Court of Claims Act, including the time limitations set forth in Court of Claims Act § 10 (Lyles v State of New York, 3 NY3d 396, 400 [2004]; Alston v State of New York, 97 NY2d 159 [2001]). As a result, "[f]ailure to comply with the statutory filing and service requirements deprives the Court of Claims of subject matter jurisdiction and compels dismissal of the claim" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see also Young v State of New York, 138 AD3d 1357 [3d Dept 2016]; Miranda v State of New York, 113 AD3d 943 [3d Dept 2014]; Encarnacion v State of New York, 112 AD3d 1003 [3d Dept 2013]). "Both filing with the court and service upon the Attorney General must take place within the relevant statutory period" (Caci v State of New York, 107 AD3d 1121 [3d Dept 2013], citing Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). Here, neither service nor filing of the claim occurred within one year of the accrual thereof as required by Court of Claims Act § 10 (3-b). Moreover, the envelope in which the claim was mailed contains no indicia that it was served by certified mail, return receipt requested, as required by Court of Claims Act § 11 (a) (i). Accordingly, the claim must be dismissed.
Based on the foregoing, defendant's motion is granted, without opposition, and the claim is dismissed.
November 30, 2016
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers:
1. Notice of motion dated August 10, 2016;
2. Affirmation of Glenn C. King dated August 10, 2016 with exhibit.