New York State Court of Claims

New York State Court of Claims
SMITH v. THE STATE OF NEW YORK, # 2018-054-075, Claim No. 131434, Motion No. M-92417

Synopsis

Motion to dismiss granted, claim untimely filed and served within 90 days of accrual.

Case information

UID: 2018-054-075
Claimant(s): STEVEN SMITH
Claimant short name: SMITH
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 131434
Motion number(s): M-92417
Cross-motion number(s):
Judge: WALTER RIVERA
Claimant's attorney: JACQUELINE MCMICKENS & ASSOCIATES, PLLC
Defendant's attorney: HON. BARBARA D. UNDERWOOD
Attorney General for the State of New York
By: Lawrence E. Kozar, Assistant Attorney General
Third-party defendant's attorney:
Signature date: July 27, 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, Supporting Affirmation and Exhibit

Claim No. 131434 was filed with the Court on May 16, 2018 and served upon defendant on May 17, 2018. The claim alleges an accrual date of March 20, 1984 when claimant was allegedly wrongfully convicted of murder in the second degree. The claim does not allege that claimant was pardoned upon the ground of innocence or that his judgment of conviction was reversed or vacated on any of the grounds set forth in Court of Claims Act 8-b [3] [b], nor does the claim set forth a specific date in that regard which would be determinative of the timeliness of claim under Court of Claims Act 8-b (7). Rather, the claim merely asserts an accrual date of March 20, 1984 (Claim 5).

Defendant moves to dismiss the claim as untimely commenced under Court of Claims Act 10 (3) because the claim was not timely served and filed within 90 days of the alleged accrual date of March 20, 1984. Claimant has not submitted an opposition to the motion.

The Court finds that the claim warrant dismissal as untimely commenced under Court of Claims Act 10 (3) and 8-b (7) (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"]; Long v State of New York, 7 NY3d 269, 273 [2006]).

Accordingly, defendant's unopposed motion to dismiss Claim No. 131434 is hereby GRANTED.

July 27, 2018

White Plains, New York

WALTER RIVERA

Judge of the Court of Claims