New York State Court of Claims

New York State Court of Claims
ELABDOUNI v. THE STATE OF NEW YORK, # 2018-054-091, Claim No. 130624, Motion No. M-92621

Synopsis

Motion to dismiss granted, claim filed untimely.

Case information

UID: 2018-054-091
Claimant(s): KARIM ELABDOUNI
Claimant short name: ELABDOUNI
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130624
Motion number(s): M-92621
Cross-motion number(s):
Judge: WALTER RIVERA
Claimant's attorney: KARIM ELABDOUNI
Pro Se
Defendant's attorney: HON. BARBARA D. UNDERWOOD
Attorney General for the State of New York
By: Matthew Feinberg, Assistant Attorney General
Third-party defendant's attorney:
Signature date: August 31, 2018
City: White Plains
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

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, Memorandum of Law and Exhibit.......................................................................................................................1

Claimant's Opposition and Exhibit..........................................................................2

The State moves to dismiss Claim No. 130624 on numerous grounds including the failure to plead sufficient facts to state a claim against the State under Court of Claims Act 11 and claimant's failure to comply with the service provisions of Court of Claims Act 10.

The Court has given this pro se drafted claim a most liberal reading. Nonetheless, the claim fails to meet the requirements set forth in Court of Claims Act 11 (b) which provides that the claim must set forth the time and place when the claim accrued and the total sum claimed. Accordingly, the claim is jurisdictionally defective and warrants dismissal (see Kolnacki v State of New York, 8 NY3d 277, 280 [2007]; Lepkowsi v State of New York, 1 NY3d 201 [2003]).

Additionally, while the claim attempts to allege causes of action for breach of contract, defamation and a violation of claimant's federal constitutional rights, the claim does not allege sufficient facts upon which recovery may be had against the State based upon: breach of contract (see Tri-star Light. Corp. v Goldstein, 151 AD3d 1102 [2d Dept 2017]); defamation (see Gutierrez v McGrath Mgt. Servs., Inc., 152 AD3d 498 [2d Dept 2017]); or a violation of claimant's federal constitutional rights (see Lyles v State of New York, 3 NY3d 396 [2004]). Thus, the claim warrants dismissal on this additional basis.

Finally, both service and filing of the claim must occur within the statutory time period mandated by the Court of Claims Act (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). A failure to comply with any of the service provisions is a jurisdictional defect compelling the dismissal of the claim (see Kolnacki, 8 NY3d at 281a ["(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]). Here, the claim broadly alleges dates of accrual as 1996, 2006, 2007 and 2011 and continuing wrongs without specifying a month and day in relation to each alleged wrong.(1) The claim was filed on November 27, 2017. Therefore, the claim is untimely as to all the accrual dates set forth in the claim and warrants dismissal due to its untimeliness (Court of Claims Act 10 [3]; [4]).

Accordingly, defendant's motion to dismiss Claim No. 130624 is GRANTED.

August 31, 2018

White Plains, New York

WALTER RIVERA

Judge of the Court of Claims


1. The gravamen of the claim appears to be based upon a requirement that claimant continue to register with the Sex Offender Registry for claimant's lifetime as opposed to a period of 10 years.