Opinion
# 2011-045-044 Claim No. 119556 Motion No. M-79821
08-10-2011
PERNORRIS TAYLOR, SR. v. STATE OF NEW YORK
Synopsis
Defendant's motion to dismiss pursuant to Civil Practice Law and Rules (CPLR) 3211(a)(2)(5) and (7) and Court of Claims Act §§ 8, 9, 10 and 11 due to improper claim, statute of limitations etc. Case information
UID: 2011-045-044 Claimant(s): PERNORRIS TAYLOR, SR. Claimant short name: TAYLOR Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant The caption has been amended, sua sponte, to reflect the name) : State of New York as the proper defendant. Third-party claimant (s): Third-party defendant(s): Claim number(s): 119556 Motion number(s): M-79821 Cross-motion number (s): Judge: GINA M. LOPEZ-SUMMA Claimant's attorney: Pernorris Taylor, Sr., Pro Se Defendant's Hon. Eric T. Schneiderman, Attorney General attorney: By: Kimberly A. Kinirons, Assistant Attorney General Third-party defendant's attorney: Signature date: August 10, 2011 City: Hauppauge Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
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 2, 2011.
Defendant, the State of New York, has brought this pre-answer motion pursuant to Civil Practice Law and Rules (CPLR) 3211(a)(2)(5) and (7) and Court of Claims Act §§ 8, 9, 10 and 11 seeking an order dismissing the claim on the grounds that the claim is jurisdictionally defective, untimely and not properly served. Claimant, Pernorris Taylor, Sr., a pro se litigant, has sent correspondence dated May 2, 2011 to the Court and defendant apparently in response to this motion.
Defendant initially argues that the claim fails to meet the pleading requirements of the Court of Claims Act § 11(b).
Claimant stated in his claim that he was filing the claim against "Nassau County Courts" due to the fact that he served a year and a half over his time of release for a criminal sentence he received on July 6, 1993. Claimant had been convicted of attempted robbery in the second degree. Claimant wrote in his claim that the claim was not filed sooner due to the fact that he had been threatened for years by the arresting police officers. Defendant argues that the claim does not apprise it of any information needed to investigate the matter. Specifically, defendant avers that the claim does not state the date claimant was sentenced, the date claimant was to be discharged, the date claimant was discharged or the basis for the claim that the amount of time served under the sentence was in error.
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 [2007]). "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 [2003]). Thus, given the deficiencies in the claim, the Court is divested of jurisdiction over this matter (see generally Young v State of New York, 82 AD3d 972 [2d Dept 2011]; Weaver v State of New York, 82 AD3d 878 [2d Dept 2011]).
Defendant further argues that the claim has not been filed and served in accordance with the time requirements set out in CCA §§ 10(3) and 10(3-b). The claim in this mater was served on March 2, 2011 and filed with the Court on that same date. Clearly, the acts complained of in the claim occurred well outside the statute of limitations periods contained in CCA §§ 10(3) and 10(3-b). Thus, the claim is untimely and must also be dismissed on this ground.
Defendant also points to CCA § 11(a)(i) and avers that since the claim was served by regular mail, as opposed to one of the authorized methods of service, it must be dismissed. However, defendant fails to submit any proof showing the method by which the claim was served. An attorney's mere assertion of a fact is not sufficient proof to sustain a motion to dismiss (Cog-Net Building Corp. v Travelers Indemn. Co., 86 AD3d 585 [2d Dept 2011]).
Therefore, for the foregoing reasons, defendant's motion to dismiss the claim is granted.
August 10, 2011
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims