New York State Court of Claims

New York State Court of Claims

SWINTON v. THE STATE OF NEW YORK, #2000-009-402, Claim No. 101538, Motion Nos. M-61041, M-61128


Synopsis


Dismissal of the claim granted based upon improper service of the claim; claimant's motion to treat the notice of intention as a claim denied pursuant to Konviser.

Case Information

UID:
2000-009-402
Claimant(s):
STANLEY SWINTON
Claimant short name:
SWINTON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101538
Motion number(s):
M-61041, M-61128
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
STANLEY SWINTON, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Patrick B. Sardino, Esq.,
Assistant Attorney General, Of Counsel.
Third-party defendant's attorney:

Signature date:
April 25, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Defendant has brought a pre-answer motion (Motion No. M-61041) seeking an order dismissing the claim pursuant to CPLR Rule 3211 for improper service. Claimant has responded with a motion (Motion No. M-61128) for an order granting permission to treat his notice of intention as a claim pursuant to Court of Claims Act, § 10(8)(a).

The following papers were considered by the Court in connection with these motions:
Notice of Motion to Dismiss, Affirmation, with Exhibits (Motion No. M-61041) 1,2


Notice of Motion, Affidavit (Motion No. M-61128) 3,4


Affirmation in Opposition (Motion No. M-61128) 5

Court of Claims Act, § 11(a) requires that a claim be served upon the Attorney General
either
by personal delivery or by certified mail, return receipt requested. This is a jurisdictional prerequisite to the maintenance of a claim and as such, must be strictly construed (Greenspan Bros. v State of New York, 122 AD2d 249).

On October 15, 1998, claimant served a notice of intention to file a claim upon the Attorney General by certified mail, return receipt requested. As set forth in his affirmation (Item 2), the Assistant Attorney General avers that the claim was subsequently served on the Attorney General on December 6, 1999, by regular mail. A copy of the envelope in which the claim was received by the Attorney General has been submitted with the motion papers (Exhibit B to Items 1,2), and this envelope indicates postage of $.55. The amount of postage establishes to the satisfaction of this Court that the claim was served by ordinary mail, and not by certified mail, return receipt requested, as required by statute.

Claimant has not provided any affidavit or other proof to indicate that this claim was served in compliance with the requirements of § 11(a).

The Court therefore finds that the claimant has failed to comply with Court of Claims Act, § 11(a) and that this claim is jurisdictionally defective (Finnerty v New York State Thruway Authority, 75 NY2d 721; Bogel v State of New York, 175 AD2d 493).

As was mentioned above, claimant's notice of intention to file a claim was served upon the Attorney General on October 15, 1998, by certified mail, return receipt requested. Since the notice of intention was properly served in accordance with the provisions of § 11(a), claimant now seeks permission to treat this notice of intention as a claim pursuant to Court of Claims Act, § 10(8)(a).

Court of Claims Act, § 10(8)(a) provides:
" A claimant who timely serves and files a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served and filed, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant."


Chapter 466 of the Law of 1995, however, amended various provisions of the Court of Claims Act and eliminated the requirement that a notice of intention to file a claim be filed with the Clerk of the Court. Chapter 466, however, did not amend the filing and service provisions of § 10(8). My esteemed colleague, Hon. Francis T. Collins, has recently held that the amendments to the Court of Claims Act made by Chapter 466 of the Laws of 1995 therefore impliedly repealed the provisions of Court of Claims Act, § 10(8)(a), prospectively from August 2, 1995 (Konviser v State of New York, 180 Misc 2d 174). For the reasons set forth by Judge Collins in Konviser, this Court must deny claimant's application seeking to treat his notice of intention as a claim.

Accordingly, for the reasons set forth herein, it is

ORDERED, that Motion No. 61041 is hereby GRANTED; and it is further

ORDERED, that Motion No. M-61128 is hereby DENIED, and it is further

ORDERED, that Claim No. 101538 is hereby DISMISSED.


April 25, 2000
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims