New York State Court of Claims

New York State Court of Claims

CARTRIGHT v. THE STATE OF NEW YORK, #2000-009-409, Claim No. 101383, Motion Nos. M-60982, CM-60983


Defendant's motion to dismiss for improper service granted. Claimants' cross-motion for permission to file a late claim also granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Nicholas V. Midey, Jr.
Claimant's attorney:
WALTER F. BENSON, ESQ.BY: Michael C. Cosgwell, Esq., of counsel.
Defendant's attorney:
Attorney General
BY: Edward J. Thompson, Esq.,
Assistant Attorney General, Of Counsel.
Third-party defendant's attorney:

Signature date:
May 26, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought a motion to dismiss the claim. Claimants have responded with a cross-motion seeking permission to file a late claim pursuant to Court of Claims Act, § 10(6).

The following papers were considered by the Court in connection with the motion and cross-motion:
Notice of Motion, Affirmation, with Exhibit (Motion No. M-60982) 1,2

Notice of Cross-Motion, Affidavit of Denise M. Chartrand, Affidavit of Michael C. Cogswell, Esq., with Exhibits (Cross-Motion No. CM-60983) 3,4,5

Letter dated February 8, 2000 from Ed J. Thompson, Esq., Assistant Attorney General (Cross-Motion No. CM-60983) 6

In its motion, defendant argues that this claim should be dismissed based upon improper service of the claim upon the Attorney General.

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).

In this particular case, it is undisputed that the claim was served by United Parcel Service "Next Day Air" service. As set forth in the affidavit of Denise M. Chartrand (Item No. 4) submitted with claimants' cross-motion, the claim was served by this means in order to assure timely service and tracking by United Parcel Service.

This method of service, however, is not sanctioned by law, and therefore is jurisdictionally defective (see, Hodge v State of New York, 158 Misc 2d 438, affd 213 AD2d 766; see also, Johnson v State of New York, Claim No. 91491; Motion No. M-52081; Cross-Motion No. CM-52521; Unreported Decision and Order of Mega, PJ, [filed January 18, 1996]). Since this claim was not served in accordance with the requirements of § 11(a) of the Court of Claims Act, it is jurisdictionally defective and must be dismissed.

Perhaps realizing that this claim would be dismissed, claimants, in their cross-motion, have requested permission to file a late claim pursuant to Court of Claims Act, § 10(6). Defendant has not opposed this relief , but has left the matter to the discretion of this Court (see Item No. 6).

In order to determine an application for permission to file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other available remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see, Matter of Gavigan v State of New York, 176 AD2d 1117).

As to the factor of excuse, claimants' attorney has argued that even though the method of service utilized was improper, the Attorney General did in fact receive the claim in a timely manner. This argument, although applicable to certain of the other factors to be considered, is not a legally sufficient excuse for failure to properly serve the claim.

The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. The basis of this claim is that claimant Joanne B. Cartright was injured on August 12, 1999, while delivering merchandise to Hewitt Hall, a building owned, occupied and maintained by the State University of New York at its Oswego, New York campus. She claims that she tripped and fell while climbing steps on a loading dock at Hewitt Hall, and that her fall was caused by accumulated debris on the dock and stairway.

Following this accident, an incident report was prepared by employees and/or agents of the State University of New York at Oswego. Claimants therefore maintain that the State had prompt notice of the incident, and that it had an opportunity to investigate the circumstances surrounding the incident once the accident report had been completed.

Additionally, even though improperly served (as determined herein), the claim did provide the Attorney General with timely notice of the accident.[1] Although their improperly served claim must be dismissed by this Court, defendant clearly had notice of the facts upon which this claim was based within 90 days of the date of occurrence. Defendant was therefore presented with an opportunity to investigate the facts surrounding the incident within the statutory time frame of Court of Claims Act, § 10(3), and therefore would not be prejudiced if the Court was to allow a claim to be served and filed at this point in time.

In order to establish a meritorious claim, it is the burden of the claimants to show that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1). In their proposed claim, claimants have alleged negligence against the State in failing to properly maintain its premises at the State University of New York at Oswego. For purposes of this application, claimants have alleged a meritorious claim.

It does not appear that claimants have any other available remedy.

The Court may in its discretion place as much or as little weight on any of the six factors to be considered pursuant to the statute. Under the current law "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979) and none of the factors can require denial as a matter of law.

Upon weighing and considering all of the factors set forth, and viewing all of the factors set forth in Court of Claims Act, Section 10(6), it is the opinion of this Court that claimants should be allowed to file their proposed claim.

Accordingly, it is

ORDERED, that Motion No. M-60982 is hereby GRANTED; and it is further

ORDERED, that Claim No. 101383 is hereby DISMISSED; and it is further

ORDERED, that Cross-Motion No. CM-60983 is hereby GRANTED, and claimants are directed to serve their claim upon the Attorney General (either personally or by certified mail, return receipt requested) and to file their claim with the Chief Clerk of the Court of Claims within 30 days of service of a file-stamped copy of this order, with such service and filing to be in accordance with the Court of Claims Act and the Uniform Rules for the Court of Claims.

May 26, 2000
Syracuse, New York
Judge of the Court of Claims

The date of the incident was August 12, 1999. The claim was admittedly served upon the Attorney General on November 9, 1999, and was therefore served within 90 days of accrual of the cause of action as required by Court of Claims Act, § 10(3).