Opinion
# 2016-038-530 Claim No. 125091 Motion No. M-87721 Cross-Motion No. CM-87863
05-23-2016
JOHN WHITE v. STATE OF NEW YORK
JOHN WHITE, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Douglas R. Kemp, Assistant Attorney General
Synopsis
Case information
| UID: | 2016-038-530 |
| Claimant(s): | JOHN WHITE |
| Claimant short name: | WHITE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125091 |
| Motion number(s): | M-87721 |
| Cross-motion number(s): | CM-87863 |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | JOHN WHITE, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Douglas R. Kemp, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 23, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, filed this claim alleging that correction officers threatened claimant and induced another inmate to assault him on July 9, 2014, and that he was denied medical treatment for the injuries sustained in the assault. Claimant moves to compel production of materials that defendant has allegedly failed to produce in response to discovery requests. Defendant opposes claimant's motion and cross-moves to dismiss the claim on the grounds that it was untimely served upon the Attorney General. In response to the cross motion, claimant concedes that the claim was not timely served and that it must be dismissed, and he requests that he be given permission to re-serve the claim.
As pertinent here, Court of Claims Act §§ 10 (3), (3-b) and 11 (a) (i) requires that a claim sounding in negligent or intentional tort be served upon the Attorney General within 90 days after accrual of the claim. It is well established that the service requirements of the Court of Claims Act must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]) and that the failure to timely comply with those requirements is a jurisdictional defect requiring dismissal of the claim (see id.; Ivy v State of New York, 27 AD3d 1190, 1191 [4th Dept 2006]; Suarez v State of New York, 193 AD2d 1037 [3d Dept 1993]). Service of a claim upon the Attorney General is complete when the claim is received by the Attorney General (see Court of Claims Act § 11 [a] [i]). The Court of Claims Act does not authorize "re-service" of an untimely and jurisdictionally defective claim, although a potential remedy for an untimely claim may lie in Court of Claims Act § 10 (6).
A timely served notice of intention will extend the time within which to serve and file a claim sounding in tort to either one or two years after the date of accrual of the claim (see Court of Claims Act §§ 10 [3]; 10 [3-b]), depending on whether the alleged tortious conduct was intentional or negligent. Here, however, there is no indication that claimant served a notice of intention, and thus the viability of the claim turns only on the date of service of the claim itself. --------
This claim states that it accrued on July 9, 2014 (see Claim No. 125091, third page), and thus, timely service upon the Attorney General was required no later than October 7, 2014, ninety days after the date of accrual. Defendant has demonstrated that service of the claim was not received by the Attorney General, and therefore not complete until October 8, 2014 (Kemp Affirmation, ¶ 9; Exhibit A), ninety-one days after its date of accrual. Thus, as claimant concedes, the claim was not timely served, and defendant's motion to dismiss the claim on jurisdictional grounds must be granted. Accordingly, it is
ORDERED, that defendant's cross motion number CM-87863 is GRANTED, and claim number 125091 is DISMISSED, and it is further
ORDERED, that claimant's motion to compel discovery responses is DENIED as moot, and it is further
ORDERED, that claimant's request to "re-serve" claim number 125091 is DENIED.
May 23, 2016
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim Number 12509, filed October 7, 2014 (2) Verified Answer, filed November 17, 2014; (3) CPLR Motion to Compel Discovery, dated October 26, 2015, with Exhibits; (4) Correspondence of John H. White, sworn to December 23, 2015; (5) Notice of Cross-Motion, dated January 5, 2016; (6) Attorney Affirmation of Douglas R. Kemp, AAG, affirmed January 5, 2016, with Exhibits A-B; (7) "Affirmation" of John H. White, Conceding Dismissal, sworn to January 19, 2016.