New York State Court of Claims

New York State Court of Claims

MARSHALL v. THE STATE OF NEW YORK, #2000-009-423, Claim No. 102125, Motion No. M-61564


Synopsis


The Court granted defendant's motion to dismiss the claim for improper service, and untimely service and filing.

Case Information

UID:
2000-009-423
Claimant(s):
ISAAC MARSHALL
Claimant short name:
MARSHALL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102125
Motion number(s):
M-61564
Cross-motion number(s):

Judge:
Nicholas V. Midey, Jr.
Claimant's attorney:
ISAAC MARSHALL, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Carla T. Rutigliano, Esq.,
Assistant Attorney General of Counsel.
Third-party defendant's attorney:

Signature date:
July 20, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this pre- answer motion seeking an order dismissing the claim.

The following papers were considered by the Court in connection with this motion:

Notice of Motion, Affirmation, with Exhibits 1,2


Letter from Claimant in Response, Dated April 25, 2000 3


Filed Papers: Claim

By his filed claim, claimant seeks to recover damages for personal injuries suffered by him allegedly occurring as a result of the State's negligence. Specifically, he claims that while an inmate at Watertown Correctional Facility, he fell down a stairway on November 12, 1997, causing serious and permanent injury to his left index finger.

Defendant acknowledges that the Attorney General was served with a notice of intention on or about January 23, 1998, by certified mail, return receipt requested. Defendant alleges that the Attorney General was served with the claim on or about March 13, 2000, by regular mail. Defendant now seeks an order dismissing this claim based upon improper and untimely service.

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 her affirmation (see Item 2) submitted with this motion, the Assistant Attorney General has attached a copy of the envelope in which the claim was received (see Exhibit B), and the amount of postage affixed thereto establishes that the claim was served by ordinary mail, and not by certified mail, return receipt requested.

Claimant has not provided any affidavit of service or other proof to indicate that this claim was served in compliance with the requirements of § 11(a). In his response (see Item 3) claimant states that he requested certified mail, return receipt requested service from the mail room at the correctional facility, and despite this request, the claim was mailed by regular mail. Claimant's self-serving statement, without any independent evidentiary support, such as a disbursement form from the facility specifying that his account was debited for the purpose of sending the claim by certified mail, return receipt requested, is insufficient to entitle claimant to raise the issue of estoppel (see, Philippe v State of New York, 248 AD2d 827).

Absent any proof that claimant directed the facility to send his claim by certified mail, return receipt requested, and that the facility's employees ignored his request, there is no basis for this Court to allow a claim which was not commenced pursuant to the strict jurisdictional requirements set forth in the Court of Claims Act.

Additionally, defendant alleges that the claim was untimely served and filed. A claim premised upon negligence must be served on the Attorney General and filed with the Clerk of the Court of Claims within 90 days of accrual (Court of Claims Act, § 10[3]). The time for serving and filing a claim, however, can be extended to two years from the date of accrual if a notice of intention is properly served upon the Attorney General within such 90 days.

In this case, claimant's cause of action accrued on November 12, 1997, the date that claimant alleged he fell at Watertown Correctional Facility. A notice of intention was properly served on the Attorney General on or about January 23, 1998, within 90 days of accrual. Accordingly, claimant had two years from the date of the alleged incident to properly serve and file his claim under Court of Claims Act, § 10(3). Claimant however, served his claim (by regular mail, as discussed above) on March 13, 2000, and the claim was also filed with the Clerk of the Court of Claims on March 14, 2000. Both the service and filing dates occurred more than two years from the date of the alleged incident.

The service and filing requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721).

Accordingly, since the claim was served by ordinary mail, and since it was both served and filed more than two years after accrual of the claim, defendant's motion to dismiss this claim must be granted.

Accordingly, it is

ORDERED, that Motion No. M-61564 is hereby GRANTED; and it is further

ORDERED, that Claim No. 102125 is hereby DISMISSED.


July 20, 2000
Syracuse, New York

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