The following papers were read and considered on defendant's motion for an
order pursuant to CPLR 3211 (a) (2) dismissing the claim: Notice of Motion,
dated December 9, 1999 and filed December 10, 1999; and Supporting Affidavit of
Gregory P. Miller, Esq., sworn to December 9, 1999 and filed December 10, 1999,
with annexed Exhibits A and B.
This claim for personal injuries arose on August 26, 1996 when claimant Freddy
Stokes ("claimant") allegedly suffered a deep cut to his right forearm while
working as part of an outside work crew from Gowanda Correctional Facility.
Claimant states that he served the Attorney-General a timely notice of
intention to file a claim on October 24, 1996 (Claim, ¶ 10). The claim was
subsequently filed on April 16, 1997.
In its answer, defendant State of New York ("defendant") raised the following
as its fifth affirmative defense:
Upon information and belief, this Court lacks jurisdiction because of Claimant's
failure to timely and properly serve a Claim and commence an action as required
by Sections 9, 10, and 11 of the Court of Claims Act. Claimant failed to timely
serve a Notice of Intention to File Claim or a Claim within ninety (90) days of
the alleged incident of August 26, 1996. The Notice of Intention to File Claim
was served on October 24, 1996 and the claim was served on April 21, 1996, more
than ninety (90) days after the alleged incident. Court of Claims Act, Section
11, requires that service on the State of New York be made personally on the
Attorney General or by Certified Mail, Return Receipt Requested, to the Attorney
General. Claimant served the Notice of Intention to File Claim by Regular
This language sets forth the affirmative defense of an improper manner of
service of the notice of intention with sufficient particularity to satisfy the
requirement of Court of Claims Act § 11 (c), as it provides "adequate and
clear notice to any reasonable person that a defect is claimed to exist and that
it may at some point be used as the basis of a motion to dismiss" (Sinacore v
State of New York, 176 Misc 2d 1, 6; see also, Fowles v State of
New York, 152 Misc 2d 837). A claimant's failure to serve the
Attorney-General personally or by certified mail, return receipt requested, is a
fatal jurisdictional defect and deprives the Court of the power to hear the
claim (Dreger v New York State Thruway Auth., 81 NY2d 721, 724; Bogel
v State of New York, 175 AD2d 493).
Defendant has now moved to dismiss the claim on the ground that the notice of
intention was improperly served. The motion is unopposed; however, the State
has failed to make a prima facie showing of entitlement to the relief requested:
defendant's counsel affirms without equivocation that the notice of intention
was served by regular mail (Supporting Affidavit of Gregory P. Miller, Esq.,
sworn to December 9, 1999 and filed December 10, 1999, with annexed Exhibits A
and B ["Miller Aff."], ¶ 6), but he does not make this statement upon
personal knowledge and he provides no documentary evidence (i.e., a copy
of the envelope in which the notice was received) to support it (see,
CPLR 3211 [c]; Alvarez v Prospect Hospital, 68 NY2d 320, 324-325;
see also, Borbon v State of New York, Ct Cl, filed February 28, 2000, Nadel,
J., Claim No. 101056, Motion No. M-60698).
Based on the foregoing, the State's motion is denied with leave to renew upon
submittal of proper papers.