Defendant's motion to dismiss the claim was granted as the notice of intention failed to sufficiently specify the time when the claim arose and the claim was filed beyond the limitation period of Court of Claims Act § 10.
|Claimant short name:||MILLER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||No Appearance|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Thomas J. Reilly, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 10, 2020|
|See also (multicaptioned case)|
Defendant moves to dismiss the instant claim pursuant to CPLR 3211 (a) (2) on the ground the claimant's notice of intention to file a claim was insufficient to extend the time to serve and file the claim and, as a result, the claim was untimely under Court of Claims Act § 10 (3).
Claimant, a prison inmate, was allegedly injured when a large metal cabinet he had been instructed to move fell on him. A notice of intention was served on May 31, 2016 and a claim was thereafter served on June 2, 2017 by certified mail, return receipt requested. The claim was filed on July 10, 2017.
Defendant contends in support of its dismissal motion that the claim served on June 2, 2017 was untimely because the notice of intention failed to allege the time the claim arose as required by Court of Claims Act § 11 (b). Defendant contends the notice of intention was therefore insufficient to extend the time to serve and file the claim.
A negligence claim for personal injuries is required to be filed and served within 90 days after accrual of the claim unless, within such time, the claimant serves a notice of intention to file a claim in which event the claim is required to be filed and served within two years following accrual (Court of Claims Act § 10 ). " 'Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed' " (Long v State of New York, 7 NY3d 269, 276 , quoting Lichtenstein v State of New York, 93 NY2d 911, 913 [other citations omitted]). The notice of intention in the instant matter alleged only that the accident underlying the claim occurred "on or about March, 2016" (defendant's Exhibit A, p. 1). Such a description of the time when the claim accrued is clearly insufficient to meet the pleading requirements of Court of Claims Act § 11 (b), which requires that a notice of intention and claim state, among other things, "the time when and place where such claim arose [and] the nature of same" (see Matter of DeMairo v State of New York, 172 AD3d 856, 857 [2d Dept 2019]; Wilson v State of New York, 61 AD3d 1367 [4th Dept 2009]; see generally Rodriguez v State of New York, 8 AD3d 647, 647 [2d Dept 2004]; Cendales v State of New York, 2 AD3d 1165, 1167 [3d Dept 2003]; Sega v State of New York, 246 AD2d 753, 755 [3d Dept 1998], lv denied 92 NY2d 805 ). While the claim which was filed on July 10, 2017 and served on June 2, 2017 sufficiently alleged the time when the claim arose, it was not served and filed within 90 days after the claim accrued and was thus untimely. Inasmuch as defendant preserved its objection to the timeliness of the claim by raising it with sufficient particularity as an affirmative defense in its answer, the claim must be dismissed.
Based on the foregoing, defendant's motion to dismiss the claim is granted and the claim is dismissed.
March 10, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims