Defendant's unopposed motion to dismiss for untimely service of claim granted. Claim was received by the office of the attorney general one day after the jurisdictionally required period for service.
|Claimant short name:||SCOTT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||No Appearance|
|Defendant's attorney:||BARBARA D. UNDERWOOD, Attorney General
of the State of New York
By: Jeane L. Strickland Smith, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 20, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, has filed this claim in which he alleges that he was wrongfully confined in keeplock at Green Haven Correctional Facility. Defendant has made a pre-answer motion to dismiss the claim as untimely. Claimant has not submitted any papers on the motion.
Court of Claims Act §§ 10 (3) or 10 (3-b) and 11 (a) (i) require, inter alia, that a claim be served upon the Attorney General within 90 days after accrual of the claim. It is well established that the filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed, and that the failure to timely serve the claim upon the Attorney General deprives the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 ; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 762-763 [3d Dept 1991], affd 81 NY2d 721 ; Locantore v State of New York, UID No. 2009-038-517 [Ct Cl, DeBow, J., Feb. 11, 2009]). Service of a claim is complete when it "is received in the office of the attorney general" (Court of Claims Act § 11 [a][i]).
The claim states that it accrued on March 12, 2018 (see Claim No. 131508, ¶ 4). Ninety days thereafter was Sunday, June 10, 2018, which was extended to Monday, June 11, 2018 by operation of law (see General Construction Law § 25-a ). Claimant has not filed proof of service of the claim, and defendant has demonstrated that the claim was not received by the Office of the Attorney General until June 12, 2018 (see Strickland Smith Affirmation, Exhibit A). Thus, the claim was untimely served, and defendant's motion to dismiss the claim on jurisdictional grounds will be granted. Accordingly, it is
ORDERED, that motion number M-92560 is GRANTED, and claim number 131508 is DISMISSED.
September 20, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 131508, filed May 31, 2018;
(2) Correspondence of Eileen F. Fazzone, Chief Clerk of the Court of Claims, dated
June 25, 2018;
(3) Notice of Motion, dated July 17, 2018;
(4) Affirmation of Jeane L. Strickland Smith, AAG, in Support of Motion to Dismiss,
dated July 17, 2018, with Exhibit A;
(5) Affidavit of Service of Motion to Dismiss of Laura Goosby, sworn to July 17, 2018.