Defendant's motion to dismiss the claim.
|Claimant short name:||BANCHS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The Court amended the caption, sua sponte, to reflect the State of New York as the proper defendant in the Court of Claims.|
|Judge:||Gina M. Lopez-Summa|
|Claimant's attorney:||Sammy Banchs, Pro Se|
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Michael C. Rizzo, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 28, 2020|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion; Defendant's Affirmation in Support with annexed Exhibit A; and Claimant's Correspondence dated May 26, 2020.
Defendant, the State of New York, has brought this pre-answer motion pursuant to Civil Practice Law and Rules 3211 (a) (2) and (7) as well as Court of Claims Act § 11 (b) seeking an order dismissing the claim in this matter. Claimant, Sammy P. Banchs opposed the motion.
Defendant argues that the claim should be dismissed because it does not comply with the requirements of Court of Claims Act § 11 (b).
Court of Claims Act § 11 (b) requires in pertinent part that "[t]he claim shall state the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained." These requirements are jurisdictional in nature and must be strictly complied with in order to properly initiate an action against defendant (Kolnacki v State of New York, 8 NY3d 277 ). "The Court of Claims Act does not require [defendant] to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York, 1 NY3d 201, 208 ).
Claimant alleges, in his claim filed January 21, 2020, various causes of action which include an assault by correction officers at Fishkill Correctional Facility in 2016; a slip and fall at Sullivan Correctional Facility in 2016; an assault by an inmate at Sullivan Correctional Facility in October 2016 and the accidental imposition of five years post release supervision by the New York State Board of Parole. The claim in this matter was filed in the Court of Claims on January 21, 2020 and was served upon the Office of the Attorney General on January 23, 2020.
Defendant contends that the claim lacks sufficient specificity regarding the time when the claim accrued. Claimant states in his claim that the claim accrued sometime in 2016-2017 without any further indication of when the claim accrued except for the mention of the month of October. In addition, the claim directs the reader to "check dates on log book."
Claimant's failure to provide an accurate date of accrual in the claim deprives the Court of jurisdiction over this matter. Accordingly, the claim must be dismissed on this ground (Lepkowski v State of New York, 1 NY3d 201, 208 ; Prisco v State of New York, 62 AD3d 978 [2d Dept 2009]; Czynski v State of New York, 53 AD3d 881 [3d Dept 2008]).
Additionally, Court of Claims Act § 10 (3) requires that a claim must be filed and served upon the Office of the Attorney General within ninety days after the accrual of such claim unless the claimant shall within such time serve a notice of intention to file a claim upon the Office of the Attorney General. A notice of intention was not served in this matter. The claim was filed on January 21, 2020. Even if the last day of 2017 was utilized as the accrual date, the claim is untimely since the claim was not served until January 23, 2020; well beyond the 90-day statutory time period set forth in Court of Claims Act §10 (3).
The Court of Appeals has long held that "[b]ecause 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" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ). Accordingly, a claimant who has not met the literal requirements of the Court of Claims Act has not properly commenced his action (Lichtenstein v State of New York, 93 NY2d 911, 913 ; Finnerty v New York State Thruway Authority, 75 NY2d 721 ). As a result, the Court is compelled to dismiss the claim due to claimant's failure to comply with the requirements set forth in Court of Claims Act § 10 (3) (Hargrove v State of New York, 138 AD3d 777 [2d Dept 2016]; Caci v State of New York, 107 AD3d 1121 [3d Dept 2013]).
Lastly, defendant argues that the Court lacks jurisdiction over the claim because claimant failed to serve the claim by either certified mail, return receipt requested or personal service as required by Court of Claims Act § 11 (a). In this case, defendant has attached a copy of the envelope in which the claim was received which shows that the claim was sent by regular mail.
Court of Claims Act § 11 (a) provides, in pertinent part, that a copy of the claim shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court. The filing and service requirements contained in the Court of Claims Act § 11 are jurisdictional in nature and therefore must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721 ). In this case, the requirement that defendant be served in accordance with Court of Claims Act § 11 was not met as the claim was not served upon the Office of the Attorney General either by certified mail, return receipt requested or by personal service. As a result, the Court is deprived of jurisdiction over the claim and is constrained to dismiss the claim (see Spraight v State of New York, 91 AD3d 995 [3d Dept 2012]).
Therefore, for the foregoing reasons, defendant's motion is granted and the claim is dismissed.
September 28, 2020
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims