BROWN III v. NEW YORK STATE BOARD OF PAROLE

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Supreme Court, Appellate Division, Third Department, New York.

Manzy BROWN III, Appellant, v. NEW YORK STATE BOARD OF PAROLE, Respondent.

Decided: October 28, 2004

Before:  MERCURE, J.P., CREW III, SPAIN, LAHTINEN and KANE, JJ. Manzy Brown III, Brentwood, appellant pro se. Eliot Spitzer, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

Appeal from a judgment of the Court of Claims (Sise, J.), entered January 7, 2003, which granted defendant's motion to dismiss the claim.

In 1994, claimant pleaded guilty to the crimes of attempted murder in the second degree and two counts of assault in the first degree and was sentenced to concurrent terms of imprisonment.   Following his third unsuccessful appearance before defendant, claimant filed a notice of intention to file a claim against the state alleging, inter alia, that defendant had relied upon incorrect information in denying claimant's bid for parole and, in so doing, committed ministerial negligence.   The notice of intention indicated that the claim accrued on July 12, 2000, the date upon which claimant appeared before defendant for his parole release interview.   The underlying claim then was filed and served upon the Attorney General on July 29, 2002.   Defendant thereafter moved to dismiss the claim as untimely.   The Court of Claims granted defendant's motion, prompting this appeal by claimant.

We affirm.   Assuming that some portion of the underlying claim survives claimant's apparent release from prison, the record nonetheless makes clear that the claim indeed was untimely and, as such, was properly dismissed.   Where, as here, a claimant timely files a notice of intention to file a claim, he or she then must file and serve the claim upon the Attorney General within two years of the accrual of the claim (see Court of Claims Act § 10[3] ).   Service upon the Attorney General is not complete until the claim is received in that office (see Court of Claims Act § 11[a];  Carter v. State of New York, 284 A.D.2d 810, 727 N.Y.S.2d 520 [2001];  Mallory v. State of New York, 196 A.D.2d 925, 601 N.Y.S.2d 972 [1993] ).   Here, the underlying claim accrued on July 12, 2000, but the Attorney General's office did not receive such claim until July 29, 2002, 17 days beyond the two-year period.   To the extent that claimant now argues that the claim did not accrue until July 26, 2000, the date upon which he apparently received notice of defendant's denial of his third bid for parole, the claim still is untimely.   Accordingly, the Court of Claims properly granted defendant's motion to dismiss.

ORDERED that the judgment is affirmed, without costs.

CREW III, J.

MERCURE, J.P., SPAIN, LAHTINEN and KANE, JJ., concur.

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