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
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
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
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.