Defendant moved at trial on October 16, 2000 to dismiss the claim on the ground
that the Court lacks jurisdiction over the defendant due to claimant's failure
to properly serve the claim. Decision was reserved and the motion will now be
The claim seeks to recover for personal injuries sustained on October 5, 1997
when claimant, an inmate at Marcy Correctional Facility, Marcy, New York, was
attacked by another inmate. Claimant sustained a laceration to the back of his
head which left a three inch scar.
The answer, filed and served on behalf of the defendant, states as a third
affirmative defense that the claim was served by regular mail and the Court is
without jurisdiction to hear the claim. At the trial Assistant Attorney General
Timothy P. Mulvey offered as Exhibit A a claim verified by the claimant on
February 12, 1998, an affidavit of service of said claim sworn to on the same
date, claimant's poor person application (not relevant to the instant motion)
and an envelope bearing claimant's name and prisoner number in the return
address area and addressed to the Attorney General's Office, Department of Law,
State Capitol, Albany, New York 12224. The envelope bears a Rome, New York
postmark dated February 26, 1998 and shows postage paid in the amount of $.78.
Both the claim itself and the envelope are date stamped showing each was
received by the New York State Department of Law Claims Bureau on February 27,
1998 and received by the New York State Department of Law Bureau of Claims and
Litigation, Syracuse Office on March 6, 1998. The envelope contains no markings
to indicate that the claim was served by certified mail, return receipt
Claimant alleged that he was notified by "the district attorney that it wasn't
supposed to be mailed by regular mail. I mailed another one certified and we
also give it to the judge."
Assistant Attorney General Mulvey acknowledged that the file contained a notice
of intention to file a claim which had been served by certified mail on December
22, 1997 but denied receipt of a properly served claim.
Claimant offered no evidence to refute the allegation of improper service.
It is well established that "[t]he notice of claim requirements in Court of
Claims Act § § 10 and 11 are jurisdictional prerequisites to the
maintenance of a claim and must be strictly construed" (
Phillips v State of New York
, 237 AD2d 590, 591; Cannon v State of New
, 163 Misc 2d 623). Service of the claim and/or notice of intention to
file a claim upon the Attorney General by regular mail, as evidenced by a copy
of the mailing envelope used by the claimant, rather than personally or by
certified mail, return receipt requested is insufficient to acquire jurisdiction
over the State requiring the granting of the dismissal motion (see
Philippe v State of New York
, 248 AD2d 827).
Since claimant failed to offer any evidence at trial to contradict the
defendant's proof that the claim was served by regular mail, this Court must
dismiss the claim for lack of jurisdiction.
Let judgment be entered accordingly.