TORRES, ARMANDO v. STATE OF NEW YORK ( 2013 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
658
CA 11-02472
PRESENT: CENTRA, J.P., FAHEY, CARNI, AND SCONIERS, JJ.
ARMANDO TORRES, CLAIMANT-APPELLANT,
V MEMORANDUM AND ORDER
STATE OF NEW YORK, DEFENDANT-RESPONDENT.
(CLAIM NO. 118610.)
ARMANDO TORRES, CLAIMANT-APPELLANT PRO SE.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATHLEEN M. ARNOLD OF
COUNSEL), FOR DEFENDANT-RESPONDENT.
Appeal from an order of the Court of Claims (Philip J. Patti,
J.), entered May 31, 2011. The order, inter alia, granted the cross
motion of defendant to dismiss the claim.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Claimant appeals from an order that, inter alia,
granted defendant’s cross motion to dismiss the claim on the ground
that claimant failed to comply with the requirements of Court of
Claims Act § 10 (3). We conclude that the Court of Claims properly
granted the cross motion inasmuch as the claim was not filed and
served nor was a notice of intention to file a claim served upon the
Attorney General within 90 days after the accrual of the claim (see §
10 [3]; Ivy v State of New York, 27 AD3d 1190, 1191). It is well
settled that “ ‘[f]ailure to comply with either the filing or service
provisions of the Court of Claims Act results in a lack of subject
matter jurisdiction requiring dismissal of the claim’ ” (Hatzfeld v
State of New York, 104 AD3d 1165, 1166). We reject claimant’s
contention that his claim did not accrue until after he had completed
the grievance process (see generally Prisco v State of New York, 62
AD3d 978, 978, lv denied 13 NY3d 706; McClurg v State of New York, 204
AD2d 999, 1000-1001, lv denied 84 NY2d 806). Claimant’s further
contention that the continuous treatment doctrine applied to toll the
time period within which the notice of intention or claim may be
served (see Ogle v State of New York, 142 AD2d 37, 39) is not properly
before us because it is raised for the first time on appeal (see
Hatzfeld, 104 AD3d at 1167; Williams v State of New York, 56 AD3d
1208, 1208). In light of our determination, we need not consider
-2- 658
CA 11-02472
claimant’s remaining contentions.
Entered: June 7, 2013 Frances E. Cafarell
Clerk of the Court