State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 26, 2015 517417
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GARY L. BUTLER,
Appellant,
v MEMORANDUM AND ORDER
STATE OF NEW YORK,
Respondent.
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Calendar Date: February 9, 2015
Before: Lahtinen, J.P., McCarthy, Lynch and Clark, JJ.
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Gary L. Butler, Ossining, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Kathleen M.
Treasure of counsel), for respondent.
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McCarthy, J.
Appeal from an order of the Court of Claims (Milano, J.),
entered May 29, 2013, which, among other things, granted
defendant's cross motion to dismiss the claim.
Claimant, a prison inmate, commenced this action on June
23, 2010 by filing and serving a claim alleging damages resulting
from a dispute over the appropriate pay rate for his work in the
mess hall. Claimant alleged that his claim accrued on March 24,
2010. Defendant answered and asserted the affirmative defense
that the claim was untimely. Claimant thereafter moved for
summary judgment, and defendant cross-moved to dismiss the claim.
The Court of Claims granted the cross motion and determined,
among other things, that the claim was untimely. Claimant now
appeals.
-2- 517417
We affirm. Inasmuch as claimant sought to recover damages
stemming from the intentional tort of an officer of defendant, he
was obliged "to file and serve, within 90 days of the date of
accrual, either a claim or a written notice of intention to file
a claim" (Robinson v State of New York, 38 AD3d 1030, 1030
[2007]; see Court of Claims Act § 10 [3-b]; Pizarro v State of
New York, 19 AD3d 891, 892 [2005], lv denied 5 NY3d 717 [2005]).
Claimant did not file and serve a notice of intention to file a
claim. Moreover, even assuming that the claim accrued on March
24, 2010, rather than earlier, the actual claim was not filed and
served in a timely manner. Thus, the Court of Claims properly
dismissed this action as untimely (see Robinson v State of New
York, 38 AD3d at 1030). Contrary to claimant's contention, there
was no indication of "misfeasance or malfeasance on the part of
facility officials" that would warrant an estoppel (Rivera v
State of New York, 5 AD3d 881, 881 [2004]).
The remaining arguments of the parties, to the extent they
are not academic in light of the foregoing, have been examined
and found to be lacking in merit.
Lahtinen, J.P., Lynch and Clark, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court