Defendant has brought this pre- answer motion seeking an order dismissing the
The following papers were considered by the Court in connection with this
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
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). 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.