Untimely filed claim is dismissed.
|Claimant short name:||BROWN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK, Deputy Superintendent for Security Robert I. Morton of Ulster Corr. Fac., L.T. Couch of Ulster Corr. Fac., Officer A. Davison of Ulster Corr. Fac., in Thair [sic] Individual Capacity|
|Footnote (defendant name) :|
|Claimant's attorney:||KENNETH BROWN
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
By: Christina Calabrese, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 8, 2018|
|See also (multicaptioned case)|
The following papers numbered 1-3 were read and considered by the Court on the State's motion to dismiss:
Notice of Motion, Attorneys Supporting Affirmation and Exhibits..........................1
Claimant's Affidavit in Opposition, Memorandum of Law......................................2
Claimant's Affidavit in Support of Summary Judgment and Exhibits.....................3
Claim No. 120281 alleges that on May 26, 2011, during claimant's incarceration at Ulster Correctional Facility, claimant was directed by a correction officer to sit for a haircut or be confined to the special housing unit (SHU). Claimant insisted that there was an order in his file permitting him to refuse a haircut for religious reasons. Claimant was confined to SHU until the subject order was found. Claimant alleges an accrual date of May 26, 2011 and violations of his rights under the constitution of the United States
The State moves to dismiss the claim. Claimant opposes the motion and argues that he is entitled to summary judgment in his favor.
Preliminarily, it is noted that Court of Claims Act § 10 (3) provides that a claim must be timely commenced within 90 days of accrual. Claimant's asserted accrual date of May 26, 2011 would require commencement of the claim on or before August 24, 2011 in order to be timely under the Court of Claims Act. Here, the claim was filed on August 26, 2011, which is beyond the 90 day time period; thus the claim was not timely commenced.
The service requirements of 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 721, 724 ). A failure to comply with any of the service provisions set forth in Court of Claims Act §§ 10 and 11 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]). Since the claim was not timely commenced and warrants dismissal, claimant cannot avail himself of summary judgment.
Moreover, an independent ground for dismissal of the claim is that the Court of Claims does not have jurisdiction over claims alleging federal constitutional violations (see Lyles v State of New York, 2 AD3d 694 [2d Dept 2003], affd 3 NY3d 396 ).
Accordingly, the State's motion to dismiss Claim No. 120281 is hereby GRANTED and claimant's motion for summary judgment is DENIED.
January 8, 2018
White Plains, New York
Judge of the Court of Claims