New York State Court of Claims

New York State Court of Claims

FRASIER v. THE STATE OF NEW YORK, #2000-009-425, Claim No. 100929, Motion No. M-61960


Synopsis


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

Case Information

UID:
2000-009-425
Claimant(s):
LAMONT FRASIER
Claimant short name:
FRASIER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100929
Motion number(s):
M-61960
Cross-motion number(s):

Judge:
Nicholas V. Midey, Jr.
Claimant's attorney:
LAMONT FRASIER, 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:
August 9, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking an order dismissing the claim pursuant to CPLR 3211 for improper and untimely service.

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

Notice of Motion, Affirmation, with Exhibits 1,2


Filed Papers: Claim, Answer.

The Court notes that claimant has not submitted any papers in opposition to this motion, nor has he otherwise communicated with the Court.

This claim alleges negligence against the State in failing to adequately maintain claimant's property upon his transfer from Cape Vincent Correctional Facility to Mid-State Correctional Facility in March, 1999. As set forth in defendant's moving papers, a notice of intention to file a claim was served on the Attorney General on May 5, 1999, by regular mail. The claim was subsequently served on the defendant on August 23, 1999, by certified mail, return receipt requested. The claim was filed with the Clerk of the Court of Claims on August 20, 1999.

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 accrual if a notice of intention is properly served upon the Attorney General within such 90 days. Furthermore, Court of Claims Act, § 11(a) provides that a notice of intention and a claim must be served personally or by certified mail, return receipt requested.

In the instant claim, defendant asserts that the notice of intention was not properly served, in that it was served by regular mail, and not by certified mail, return receipt requested. A copy of the envelope in which the notice of intention was received by the Attorney General has been attached to defendant's moving papers (Exhibit A to Items 1, 2). Postage in the amount of $.55 indicated on this envelope establishes to the satisfaction of this Court that the notice of intention was served by regular mail, and not by certified mail, return receipt requested.

The requirements of Court of Claims Act, § 11 are jurisdictional in nature and must be strictly construed (see, Finnerty v New York State Thruway Authority, 75 NY2d 721; Phillips v State of New York, 237 AD2d 590). Accordingly, the Court finds that claimant's notice of intention was not properly served in accordance with Court of Claims Act, § 11(a), and it is therefore deemed a nullity (see, Edens v State of New York, 259 AD2d 729).

As a result, claimant is not entitled to the two year extension of time in which to serve and file a claim as provided by Court of Claims Act, § 10(3). Consequently, the claim, which was both served and filed well beyond the 90 day period provided by Court of Claims Act, § 10(3), is untimely. The claim is therefore jurisdictionally defective and must be dismissed.

Accordingly, it is

ORDERED, that Motion No. M-61960 is hereby GRANTED; and it is further

ORDERED, that Claim No. 100929 is hereby DISMISSED.




August 9, 2000
Syracuse, New York
HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims