The following papers were read and considered on defendant's motion for an
order pursuant to CPLR 3211 (a) (2) and (8) for an order dismissing the claim
for failure to comply with the requirements of Court of Claims Act § 10:
Notice of Motion to Dismiss Claim, dated December 6, 1999 and filed December 8,
1999; Affirmation of J. Gardner Ryan, Esq., dated December 6, 1999 and filed
December 8, 1999, with annexed Exhibits 1 and 2; and the Claim, sworn to July 7,
1999 and filed July 16, 1999.
The claim in this action, which was filed on July 16, 1999, alleges that on
May 16, 1999, at Green Haven Correctional Facility, claimant Mark E. Dixon
("claimant") was falsely charged with attempting to assault a correction officer
and, in addition, was verbally abused and taunted by correction officers.
Although the claim was filed with the Court within ninety days of its
accrual (Court of Claims Act §§ 10  and 10 [3-b]), counsel for
defendant State of New York ("defendant") has moved to dismiss the action on the
ground that the claim was not timely served on the Attorney-General.
The copy of the claim served on the Attorney-General bears a stamp noting its
receipt on November 15, 1999 (Affirmation of J. Gardner Ryan, Esq., dated
December 6, 1999 and filed December 8, 1999, Exhibit 1). Further proof that
this was the date of service is found in the Court's own files, which contain
photocopies of certified mail, return receipts establishing receipt by the Court
of Claims on July 16, 1999 and receipt by the New York State Department of Law
on November 15, 1999.
Compliance with the filing and service requirements contained in sections 10
and 11 of the Court of Claims Act is a jurisdictional prerequisite to bringing
and maintaining an action in this Court (Buckles v State of New York, 21
NY 418), and failure to comply constitutes a fatal jurisdictional defect
requiring dismissal (Byrne v State of New York, 104 AD2d 782). Section
11 (a) requires that a copy of the claim be served on the Attorney-General,
either personally or by certified mail, return receipt requested, "within the
times hereinbefore provided for filing with the clerk of the court." As noted,
section 10 (3) requires that a claim to recover for personal injury caused by
negligence or an unintentional tort be served within ninety days after its
and the same time requirement is placed on claims alleging an intentional tort
(Court of Claims Act § 10 [3-b]). Claimant, therefore, failed to serve his
claim on the Attorney-General in a timely fashion, and defendant's counsel has
properly raised the defense of untimeliness in a pre-answer motion (see,
Court of Claims Act § 11 [c]).
Defendant's motion is granted; the claim is dismissed.