New York State Court of Claims

New York State Court of Claims
MONTERO v. THE STATE OF NEW YORK, GREENE CORRECTIONAL FACILITY, # 2018-054-061, Claim No. 129482, Motion No. M-92325

Synopsis

Defendant's motion to dismiss granted-service of notice of intention cannot be used to extend time to file or serve a claim.

Case information

UID: 2018-054-061
Claimant(s): DAVID MONTERO
Claimant short name: MONTERO
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK, GREENE CORRECTIONAL FACILITY
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 129482
Motion number(s): M-92325
Cross-motion number(s):
Judge: WALTER RIVERA
Claimant's attorney: DAVID MONTERO
Pro Se
Defendant's attorney: HON. BARBARA D. UNDERWOOD
Attorney General for the State of New York
By: Glenn C. King, Assistant Attorney General
Third-party defendant's attorney:
Signature date: June 20, 2018
City: White Plains
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

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

During claimant's incarceration at Greene Correctional Facility, claimant filed an inmate property claim alleging that his property was missing following his release from the special housing unit. Claimant exhausted his administrative remedies on January 17, 2017. Thereafter, claimant had 120 days from January 17, 2017 to serve and file a claim (Court of Claims Act 10 [9]).

Claimant, however, did not serve and file a claim within the statutorily mandated time period. Rather, claimant served defendant with a notice of intention to file a claim on February 27, 2017 (Ex. A). However, with regard to claims filed under Court of Claims Act 10 (9), "[t]here is no provision in Court of Claims Act 10 (9) which allows for service of a notice of intention to file a claim as a means of extending the time that a claim may be served or filed" (Pristell v State of New York, 40 AD3d 1198, 1198-1199 [3d Dept 2007]). Thus, claimant's notice of intention to file a claim was a nullity. Additionally, claimant's service of a copy of the claim upon defendant by regular mail on March 3, 2017 (Ex. B) was also a nullity as service by regular mail is not an authorized manner of service under Court of Claims Act 11 (a) (see Brown v State of New York, 114 AD3d 632 [2d Dept 2014]).

The service requirements set forth in Court of Claims Act 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 [1992]). 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 [2007] ["(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, the State's unopposed motion to dismiss Claim No. 129482 is hereby GRANTED.

June 20, 2018

White Plains, New York

WALTER RIVERA

Judge of the Court of Claims