Motion to dismiss granted, claim untimely filed and served within 90 days of accrual.
|Claimant short name:||SMITH|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|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|
|See also (multicaptioned case)|
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  [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  ["(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect"]; Long v State of New York, 7 NY3d 269, 273 ).
Accordingly, defendant's unopposed motion to dismiss Claim No. 131434 is hereby GRANTED.
July 27, 2018
White Plains, New York
Judge of the Court of Claims