Notice of intention does not apply to extend dates for filing and service of inmate property claims.
|Claimant short name:||GONZALEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||VICTOR GONZALEZ, Pro se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Heather R. Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 4, 2017|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim in which he seeks compensation for personal property that was allegedly taken during a lock down and frisk at Green Haven Correctional Facility (CF) on June 14, 2015. The claim alleges that claimant filed an administrative claim, and that his administrative appeal was denied, but it does not state the date of the appeal decision. The claim further alleges that claimant served a notice of intention to file a claim on the Attorney General on August 19, 2015. This judicial claim was filed on March 29, 2017. Defendant has moved in lieu of answer to dismiss the claim on jurisdictional grounds, contending that the claim was not timely served. Claimant opposes the motion.
Court of Claims Act § 11 (a) (1) requires, among other things, that a copy of the claim "shall be served personally or by certified mail, return receipt requested, upon the attorney general" and that such service be effected "within the times hereinbefore provided for filing with the clerk of the court." Court of Claims Act § 10 (9) requires that a bailment claim such as this be filed and served within 120 days of the exhaustion of claimant's administrative remedies. It is well established that failure to file and serve the claim in accordance with the requirements of Court of Claims Act § 11 is a jurisdictional defect that requires dismissal of the claim (see Finnerty v New York State Thruway Auth. 75 NY2d 721, 722-723 ; Spaight v State of New York, 91 AD3d 995 [3d Dept 2012]; Rodriguez v State of New York, 307 AD2d 657 [3d Dept 2003]).
Claimant contends that the decision denying his administrative appeal was dated September 14, 2015, and that he timely served a notice of intention on August 19, 2015, which extended his time to file and serve the claim by two years in accordance with Court of Claims Act § 10 (3). Claimant's argument is of no force, however, because the statutory provisions regarding notices of intention and extensions of time to file and serve a claim are inapplicable to inmates' claims pursuant to Court of Claims Act § 10 (9) for lost or destroyed property (see Pristell v State of New York, 40 AD3d 1198 [3d Dept 2007]; McTier v State of New York, UID No. 2008-030-511 [Ct Cl, Scuccimarra, J., Mar. 6, 2008]). Thus, the jurisdictional viability of this claim turns on whether the claim itself was timely filed and served.
Claimant asserts that his administrative remedies were exhausted on September 14, 2015. Per Court of Claims Act § 10 (9), this claim was required to have been filed and served within 120 days thereafter, or by January 12, 2016. The claim was not served until March 31, 2017 (see Rubinstein Affirmation, ¶ 3, Exhibit A), and is clearly untimely by more than a year.
Accordingly, it is
ORDERED, that motion number M-90458 is GRANTED, and claim number 129495 is DISMISSED.
October 4, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 129495, filed March 29, 2017;
(2) Notice of Motion, dated May 8, 2017;
(3) Affirmation of Heather R. Rubinstein, AAG, dated May 8, 2017, with Exhibit A;
(4) Response of Victor Gonzalez, sworn to June 21, 2017, with attachment.