Claim dismissed, notice of intention untimely.
|Claimant(s):||MOSES-HIRSHBERG THOMAS AKA ROGER MOORE THOMAS|
|Claimant short name:||THOMAS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK, ET AL.|
|Footnote (defendant name) :|
|Claimant's attorney:||MOSES-HIRSHBERG THOMAS
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
Acting Attorney General for the State of New York
By: Lawrence E. Kozar, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 22, 2018|
|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, Attorney's Supporting Affirmation and Exhibits........................1
Affirmation of Actual Innocent Respond..................................................................2
Defendant brings this pre-answer motion to dismiss Claim No. 129206 on the ground that this Court is without jurisdiction over the claim.
This pro se claim alleges an accrual date of December 19, 1997 and, giving the claim a most liberal reading, seems to assert that claimant was the subject of unfair treatment and wrongfully prosecuted on two separate unspecified occasions by a judge from an unnamed court. A Notice of Intention to File a Claim was served upon defendant on May 21, 2015 and a second Notice of Intention to File a Claim was served on defendant on June 8, 2016 (Defendant's Ex. A). The claim was filed with the Court on January 23, 2017 and a copy of the claim was served upon defendant on February 12, 2018.
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 ). 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 (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"]; Prisco v State of New York, 62 AD3d 978 [2d Dept 2009]). Here, the notices of intention were not timely served within 90 days of the date of accrual, December 19, 1997. Thus, the notices of intention were a nullity and the claim, served more than 19 years after its accrual, was not timely (see Bennett v State of New York, 106 AD3d 1040 [2d Dept 2013]). Additionally, the claim fails to set forth sufficient facts to meet the requirements of Court of Claims Act § 11 (b).
Accordingly, defendant's motion to dismiss Claim No. 129206 is hereby GRANTED.
May 22, 2018
White Plains, New York
Judge of the Court of Claims