Defendant has brought a motion (Motion No. M-60997) seeking an order dismissing
the claim. Shortly thereafter, claimant filed a motion seeking permission to
file a late claim (Motion No. M-61089), as well as a motion (Motion No. M-61145)
seeking poor person relief on the above claim. For purposes of judicial
economy, the Court will consider all of these motions herein.
The following papers were considered by the Court in connection with these
Notice of Motion, Affirmation, with Exhibit (Motion No. M-60997) 1,2
"Motion to Opposition" (Motion No. M-60997) 3
Motion, Notice of Motion, with Exhibit (Motion No. M-61089) 4,5
Affirmation in Opposition, with Exhibits (Motion No. M-61089) 6
Affidavit of Plaintiff (sic) (Motion No. M-61089) 7
"Motion for Appointment of Counsel" (Motion No. M-61145) 8
Letter dated February 11, 2000, from Assistant Attorney General Timothy P.
Mulvey (Motion No. M-61145) 9
Filed Papers: Claim No. 101524
In his filed claim (Claim No. 101524), claimant alleges that on August 19,
1999, while he was incarcerated at Cape Vincent Correctional Facility, he used
drinking water from a hot pot for making coffee, and the water contained an
unknown substance which caused claimant severe stomach pains, vomiting,
indigestion, weight loss, mental anguish, and loss of sleep. He alleges
negligence against the State of New York by failing to protect his safety,
denying him proper medical treatment, and violating his civil rights. He also
alleges negligent training, hiring, and supervision of correction officers at
Cape Vincent Correctional Facility, and failure to properly discipline said
In his affirmation submitted with Motion No. M-60997 (see Item 2), the
Assistant Attorney General avers that this claim was served upon the office of
the Attorney General on December 2, 1999 by regular U.S. mail. A copy of the
envelope in which the claim was received, attached as an exhibit to the moving
papers, indicates postage of $.77. 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.
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).
Claimant has not provided any proof to indicate that this claim was served in
compliance with the requirements of § 11(a). The Court therefore finds
that claimant has failed to comply with Court of Claims Act, § 11(a) and
that this claim is jurisdictionally defective and must be dismissed (Finnerty
v New York State Thruway Authority, 75 NY2d 721; Bogel v State of New
York, 175 AD2d 493).
With regard to claimant's motion (Motion No. M-61145) for a Court appointed
attorney, the Court notes that it had previously denied an
by claimant to proceed as a poor
person in this claim. Not only has this Court already denied the relief sought
by claimant in this motion, claimant's motion has been rendered moot by the
dismissal of this claim herein.
The Court is also aware that claimant has attempted to file numerous other
motions relating to the pleadings and discovery issues of this claim. These
"motions" are woefully inadequate in both form and content, and do not satisfy
the minimal requirements for motion practice in this Court. In any event, since
this claim is being dismissed by this order, such requests for relief are all
hereby denied as moot.
Claimant has also filed a motion (Motion No. M-61089) seeking permission to
file a late claim. The proposed claim submitted with these motion papers
reveals that claimant seeks to file a claim arising out of the same incident,
and alleging the same causes of action, as set forth in Claim No. 101524, which
has been dismissed herein for improper service.
Defendant objects to the late claim relief sought by claimant on the basis that
claimant has previously served and filed a claim arising from the same incident,
and therefore the application is moot. Such an argument, however, is
unconvincing. The Assistant Attorney General fails to acknowledge that at the
time of his answering affirmation to this late claim application, a motion had
already been made before this Court to dismiss the prior filed claim (Claim No.
101524) for improper service.
Despite this duplicitous argument, defendant's attorney also avers that a copy
of the proposed claim was not contained in the motion papers served on him.
Although one can certainly assume from claimant's motion and notice of motion
(Items 4 and 5) that the proposed late claim is essentially identical to filed
Claim No. 101524, the Attorney General is certainly entitled to receive a copy
of the proposed claim, as required by Court of Claims Act, § 10(6), in
order to properly respond to the application. Accordingly, the Court cannot
consider claimant's application to serve and file a late claim at this
Therefore, based on the above, it is
ORDERED, that Motion No. M-60997 is hereby GRANTED; and it is further
ORDERED, that Claim No. 101524 is hereby DISMISSED; and it is further
ORDERED, that Motion No. M-61145 is hereby DENIED, as moot; and it is
ORDERED, that Motion No. M-61089 is hereby DENIED, without prejudice to renew
said application upon the service and filing of proper and complete papers, and
also addressing the statutory factors set forth in Court of Claims Act, §
10(6), within 30 days from the date of filing of this decision and order.