Notice of intention was not timely served within 90 days of the date of accrual. Claim dismissed.
|Claimant short name:||BASABE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK, DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, MEDICAL UNIT AT EASTERN NY CORRECTIONAL FACILITY|
|Footnote (defendant name) :|
|Claimant's attorney:||JONATHAN BASABE
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
By: Belinda A. Wagner, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 16, 2017|
|See also (multicaptioned case)|
The following papers numbered 1-2 were read and considered by the Court on defendant's motion to dismiss:
Notice of Motion, Affirmation in Support and Exhibits...........................................1
Defendant's Reply Affirmation(1) ................................................................................2
On December 15, 2015, claimant served defendant with a Notice of Intention to File a Claim asserting an accrual date of September 8, 2015 for his claim of negligent medical treatment during his incarceration at Eastern Correctional Facility (Eastern) (Defendant's Ex. A). On August 28, 2017, claimant served defendant with an "Affidavit in Support of Claim" (Defendant's Ex. B). On September 5, 2017, claimant filed an "Affidavit in Support of Claim" with the Court and was assigned Claim No. 130224.
Defendant moves to dismiss the claim due to the jurisdictional defect of untimeliness.
The Court of Claims Act mandates that either a Notice of Intention to File a Claim must be served or a claim must be served and filed within 90 days of accrual (Court of Claims Act § 10 ). Court of Claims Act § 11 (a) (i) further provides that service upon the attorney general "shall not be complete until the claim or the notice of intention is received in the office of the attorney general [emphasis added]." The service requirements set forth in Court of Claims Act §§ 10 and 11 are jurisdictional and a failure to comply with any of the service provisions is a jurisdictional defect compelling the dismissal of the claim (Prisco v State of New York, 62 AD3d 978 [2d Dept 2009]) (see Kolnacki v State of New York, 8 NY3d 277, 281  ["(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect"]). Here, the notice of intention was not timely served within 90 days of the date of accrual, September 8, 2015. Thus, the notice of intention was a nullity and the claim was not timely (see Bennett v State of New York, 106 AD3d 1040 [2d Dept 2013]).
Accordingly, defendant's motion to dismiss Claim No. 130224 is hereby GRANTED.
November 16, 2017
White Plains, New York
Judge of the Court of Claims
1. While defendant submitted a reply to claimant's opposition papers, claimant never filed any opposition papers with the Court.