Opinion
2013-04-17
Thomas HUGHES, appellant, v. STATE of New York, respondent.
Law Office of Steven A. Morelli, P.C., Garden City, N.Y., for appellant. Eric T. Schneiderman, Attorney General, New York, N.Y. (Steven C. Wu and Simon Heller of counsel), for respondent.
Law Office of Steven A. Morelli, P.C., Garden City, N.Y., for appellant. Eric T. Schneiderman, Attorney General, New York, N.Y. (Steven C. Wu and Simon Heller of counsel), for respondent.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, L. PRISCILLA HALL, and PLUMMER E. LOTT, JJ.
In a claim, inter alia, to recover damages for alleged violations of state and federal constitutional rights, the claimant appeals from an order of the Court of Claims (Lopez–Summa, J.), dated December 27, 2011, which granted the defendant's motion pursuant to CPLR 3211(a)(2) to dismiss the claim for lack of subject matter jurisdiction, and denied his cross motion, in effect, to deem the claim to have been timely filed and served.
ORDERED that the order is affirmed, with costs.
The claim in this case was untimely, pursuant to Court of Claims Act § 10(3), since it was commenced more than 90 days after the date when the claim accrued and no written notice of intention to file a claim was served upon the attorney general in accordance with the statute ( seeCourt of Claims Act § 10[3]; Kaufman v. State of New York, 18 A.D.3d 503, 795 N.Y.S.2d 280). Since the filing requirements of Court of Claims Act § 10 are jurisdictional in nature, and the failure to comply with such requirements deprives the Court of Claims of subject matter jurisdiction ( see Williams v. State of New York, 38 A.D.3d 646, 647, 831 N.Y.S.2d 514), the Court of Claims properly granted the defendant's motion pursuant to CPLR 3211(a)(2) to dismiss the claim for lack of subject matter jurisdiction.
The Court of Claims providently exercised its discretion in denying the claimant's cross motion, in effect, to deem the claim to have been timely filed and served. Upon weighing the statutory factors set forth in Court of Claims Act § 10(6) ( see Edens v. State of New York, 259 A.D.2d 729, 730, 687 N.Y.S.2d 423), the Court of Claims properly determined that the claimant failed to come forth with a reasonable excuse for his delay in filing the claim and failed to demonstrate that his claim was potentially meritorious ( see Martinez v. City of Schenectady, 97 N.Y.2d 78, 735 N.Y.S.2d 868, 761 N.E.2d 560;Deleon v. State of New York, 64 A.D.3d 840, 882 N.Y.S.2d 351;Kashelkar v. State of New York, 30 A.D.3d 163, 815 N.Y.S.2d 459;Lyles v. State of New York, 2 A.D.3d 694, 770 N.Y.S.2d 81,affd.3 N.Y.3d 396, 787 N.Y.S.2d 216, 820 N.E.2d 860). In addition, alternative remedies are available to the claimant ( see Lerner v. State of New York, 72 A.D.3d 406, 407, 897 N.Y.S.2d 100;Olsen v. State of New York, 45 A.D.3d 824, 825, 845 N.Y.S.2d 758).