Defendant's motion to dismiss claim is granted where untimely served claim is barred by Court of Claims Act 10 (3).
|Claimant short name:||FLOWERS|
|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: Charles Lim, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 29, 2020|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim because the claim is untimely pursuant to Court of Claims Act section 10 (3). Claimant has not appeared in opposition to the defendant's motion to dismiss the claim.
The claim alleges that the inmate/claimant was denied pain medication at Clinton Correctional Facility beginning March 22, 2016 after having surgery on March 18, 2016 and thereafter receiving pain medication from March 18, 2016 to March 21, 2016.
The claim sounds in negligence/medical malpractice and Court of Claims Act 10 (3) provides as follows:
"A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional 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 two years 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 accrued on March 22, 2016 and claimant served on the attorney general a notice of intention to file a claim on June 6, 2016, thus extending claimant's time to serve his claim until March 22, 2018.
The claim was served on the attorney general on April 6, 2018, more than two years after its accrual date, and is untimely pursuant to the requirements of Court of Claims Act 10 (3).
The defendant's motion to dismiss the claim is granted. The claim is dismissed.
October 29, 2020
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Defendant's Notice of Motion to Dismiss, filed August 18, 2020;
2. Affirmation of Charles Lim, dated August 17, 2020, and annexed exhibits.