New York State Court of Claims

New York State Court of Claims

WAGSTAFF v. THE STATE OF NEW YORK, #2000-007-006, Claim No. 98372, Motion No. M-61379


Synopsis


Claim dismissed because notice of intention not properly served and subsequent claim was untimely.

Case Information

UID:
2000-007-006
Claimant(s):
EVERTON WAGSTAFF
Claimant short name:
WAGSTAFF
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98372
Motion number(s):
M-61379
Cross-motion number(s):

Judge:
John L. Bell
Claimant's attorney:
EVERTON WAGSTAFF, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL(EILEEN E. BRYANT, ESQ., Assistant Attorney General, of Counsel)
Third-party defendant's attorney:

Signature date:
April 6, 2000
City:
Plattsburgh
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Defendant has made an application for an order dismissing the claim upon the ground that the court lacks jurisdiction. The following papers were read and considered by the court:

Notice of Motion, Affirmation of Eileen
E. Bryant, Esq., Annexed Exhibits 1, 2, 3

Filed Papers: Claim, Answer 4, 5

Claimant alleges that various items of his personal property were lost because of negligence of defendant. He states in his claim that the purported negligence occurred on February 9, 1997, while he was incarcerated at
Clinton Correctional Facility
. Defendant was served with a notice of intention on April 3, 1997. Defendant states in its motion papers that the notice of intention was served by certified mail, but that there was no request for a return receipt. The claim was subsequently served and filed on May 27, 1997. In its answer, defendant asserted that the notice of intention was defective because there was no request for a return receipt. Defendant further asserted that the claim was untimely and therefore jurisdictionally defective. Defendant now moves to dismiss upon such ground.

A claim premised upon negligence must be served upon the Attorney General and filed with the clerk of the Court of Claims within 90 days of accrual. The time for serving and filing a claim can be extended if a notice of intention is properly served upon the Attorney General within 90 days of accrual (Court of Claims Act §§ 10, 11). The filing requirements and time-limitations of the Court of Claims are jurisdictional in nature and therefore are strictly construed (Dreger v New York State Thruway Auth., 81 NY2d 721; Conner v State of New York, AD2d , 701 NYS2d 481). If a claimant fails to comply with the stringent time-limitations of Court of Claims Act § 10 and the defendant properly preserves and asserts such failure, the court does not have discretion to disregard the defect (see, Downes v State of New York, 76 AD2d 967).

Claimant served his notice of intention upon defendant by certified mail without a request for a return receipt. Service by certified mail, with a failure to request a return receipt, is improper (Schaeffer v State of New York, 145 Misc 2d 135; see, Hodge v State of New York, 213 AD2d 766, appeal dismissed 87 NY2d 968). The notice of intention therefore did not extend the time for filing and serving the claim. The claim was filed and served more than 90 days after accrual. The claim is jurisdictionally defective and therefore must be dismissed.

It is

ORDERED that defendant's motion is granted and the claim is dismissed.


April 6, 2000
Plattsburgh, New York

HON. JOHN L. BELL
Judge of the Court of Claims