Motion to dismiss claim in lieu of answer is granted where claimant's cause of action for intentional refusal to provide medical treatment and cause of action alleging that correction officers assaulted claimant were not served within time periods set forth in CPLR 215 and Court of Claims Act 10 (3-b).
|Claimant(s):||VICTOR APONTE, 77-A-0789|
|Claimant short name:||APONTE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Paul F. Cagino, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 17, 2019|
|See also (multicaptioned case)|
Defendant moves, in lieu of answering, to dismiss the claim based upon claimant's failure to timely serve the claim as required by Court of Claims Act 10 (3-b) and CPLR 215. Claimant has not appeared in opposition to defendant's motion to dismiss.
The claim alleges that claimant was intentionally assaulted by correction officers at Clinton Correctional Facility on June 8, 2015 and was then intentionally refused medical care, at the latest, on July 9, 2015.
The assault claim accrued on June 8, 2015 and the intentional refusal to provide medical care accrued, at the latest, on July 9, 2015.
The claim was served on the Attorney General on May 4, 2018, more than one year after the accrual of the intentional tort causes of action in the claim.
Claimant's cause of action alleging intentional assault is time-barred by the one-year limitations period provided by CPLR 215.
Additionally, both the intentional assault cause of action, and the cause of action alleging that defendant intentionally denied claimant medical care, must be dismissed pursuant to Court of Claims Act 10 (3-b), which provides at relevant part as follows:
"A claim to recover damages for . . . personal injuries caused by the intentional tort of an officer or employee of the state while acting as such officer or employee . . . shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim."
Courts have consistently held that "[a]s a condition of the State's limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim" (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 ).
The claim alleges that a notice of intention to file a claim was served on the Attorney General within ninety days of accrual of the claim.
As set forth in Court of Claims Act 10 (3-b), such service provided claimant a one-year period, measured from the date of accrual, in which to serve his claim, with respect to the intentional tort causes of action.
Claimant failed, however, to serve his claim within the one-year period after accrual. The claim's causes of action based upon intentional tortious conduct is barred by Court of Claims Act 10 (3-b).
The defendant's motion to dismiss is granted and the claim is dismissed.
April 17, 2019
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Defendant's Notice of Motion to Dismiss in Lieu of Answer, filed June 11, 2018;
2. Affirmation of Paul F. Cagino, dated June 11, 2018, and attached exhibits.
3. Claim, filed May 4, 2018.