New York State Court of Claims

New York State Court of Claims

BERROA v. THE STATE OF NEW YORK, #2000-010-027, Claim No. 101644, Motion No. M-61281


Synopsis


Defendant's motion to dismiss

Case Information

UID:
2000-010-027
Claimant(s):
PEDRO BERROA
Claimant short name:
BERROA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101644
Motion number(s):
M-61281
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
ALLEN S. GOLD, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Richard Lombardo, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 28, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-2 were read and considered by the Court on defendant's motion to dismiss:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1
Affirmation in Opposition........................................................................................2

On January 11, 1999, a Notice of Intention was received in the office of the Attorney General by certified mail no return receipt requested (Defendant's Ex. A). The Notice of Intention alleged:

negligence committed against this claimant, by N.Y. State Employees working within the scope of their duties, and discharge of their duties, at the listed corr. facility.


The Notice of Intention further alleged that the claim arose on December 7, 1998 at Sing Sing Correctional Facility. A claim was subsequently filed on December 21, 1999 and served on December 22, 1999 (Defendant's Ex. B, Filed Claim).

Court of Claims Act §11(b) provides that a Notice of Intention to File a Claim shall state the time and place where the claim arose and the nature of the claim. The purpose of a Notice of Intention is to provide defendant with fair and timely notice of the general nature of the claim and those facts necessary to enable defendant to conduct a meaningful investigation to determine its potential liability (see, Epps v State of New York, 199 AD2d 914).

Court of Claims Act §11(a) provides that the Notice of Intention be served personally or by certified mail, return receipt requested. Here, claimant concedes that the Notice of Intention was not properly served, i.e., it was sent by certified mail without requesting a return receipt (Affirmation in Opposition, ¶ 3).

Accordingly, claimant's Notice of Intention, which was not properly served in accordance with Court of Claims Act §11, is deemed a nullity (see, Edens v State of New York, 259 AD2d 729 [pro se inmate's Notice of Intention was jurisdictionally defective because it was sent by regular mail]). Consequently, claimant could not properly avail himself of the two year period in which to file a claim as provided by Court of Claims Act §10(3) (see, Torres v State of New York, 233 AD2d 389). Thus, the claim filed on December 21, 1999 and served upon the Attorney General's office on December 22, 1999 was untimely. Accordingly, defendant's motion to dismiss is GRANTED.


June 28, 2000
White Plains , New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims