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
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). 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
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.