Assault by correction officer-Claim dismissed- improper service and untimely filing of the claim.
|Claimant short name:||BORDEAU|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claimant's attorney:||JOSHUA BORDEAU
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
By: Paul F. Cagino, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 18, 2017|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on defendant's unopposed motion to dismiss:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits
Defendant moves to dismiss Claim No. 126607 due to the improper service and untimely filing of the claim.
Claim No. 126607 alleges that on November 27, 2013, during claimant's incarceration at Greene Correctional Facility, he was assaulted by several correction officers. In August 2015, the claim was served upon defendant by regular mail, a manner of service not authorized by Court of Claims Act § 11 (a) (see Brown v State of New York, 114 AD3d 632 [2d Dept 2014]). The claim was filed with the Court on August 17, 2015, well beyond the 90 days after the accrual of the claim and the time mandated for filing (Court of Claims Act § 10 [3-b]; see Caci v State of New York, 107 AD3d 1121 [3d Dept 2013]).
Both service and filing of the claim must occur within the statutory time period mandated by the Court of Claims Act (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ).
The service requirements set forth in Court of Claims Act §§ 10 and 11 are jurisdictional in nature and require strict compliance as a precondition of suit against the State (see Dreger v New York State Thruway Auth., 81 NY2d at 724). A failure to comply with any of the service provisions is a jurisdictional defect compelling the dismissal of the claim (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"]; Welch v State of New York, 286 AD2d 496, 497-98 [2d Dept 2001]).
Accordingly, defendant's unopposed motion to dismiss Claim No. 126607 is hereby GRANTED.
October 18, 2017
White Plains, New York
Judge of the Court of Claims