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Green v. State

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


November 26, 2008

SHAWN GREEN, APPELLANT,
v.
STATE OF NEW YORK, RESPONDENT.

Appeal from a judgment of the Court of Claims (Schaewe, J.), entered November 29, 2006, which denied claimant's motion for summary judgment in lieu of complaint.

The opinion of the court was delivered by: Malone Jr., J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: November 10, 2008

Before: Mercure, J.P., Spain, Carpinello, Malone Jr. and Stein, JJ.

MEMORANDUM AND ORDER

Claimant, a prison inmate, filed a motion for summary judgment in lieu of complaint seeking to recover for the alleged loss of personal property during the course of a transfer for a court appearance. Defendant opposed the motion contending, among other things, that a motion pursuant to CPLR 3213 was inappropriate in light of the relief sought by claimant. The Court of Claims denied claimant's motion finding, among other things, that it lacked subject matter jurisdiction. This appeal by claimant ensued.

We affirm. Preliminarily, we agree with the Court of Claims that claimant, having failed to timely file and serve a notice of claim or notice of intention to file a claim (see Court of Claims Act §§ 10, 11), did not properly invoke the court's subject matter jurisdiction (see Czynski v State of New York, 53 AD3d 881, 883 [2008]). Moreover, even assuming that jurisdiction was not lacking and, further, that a motion pursuant to CPLR 3213 was an available procedural remedy in the context of an action brought in the Court of Claims, defendant's motion must fail on the merits. Simply put, the inventory sheet and/or accompanying claim form submitted by claimant do not qualify as an "instrument" within the meaning of CPLR 3213, nor do they establish an unconditional obligation to pay a sum certain on a particular date (see Ian Woodner Family Collection v Abaris Books, 284 AD2d 163, 164 [2001]). Accordingly, claimant's motion was properly denied.

Mercure, J.P., Spain, Carpinello and Stein, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20081126

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