New York State Court of Claims

New York State Court of Claims

MULLER v. THE STATE OF NEW YORK, #2000-019-007, Claim No. 95540


Synopsis


Claim dismissed due to Claimant's failure to serve Claim on AG in accordance with CCA 10 and 11.

Case Information

UID:
2000-019-007
Claimant(s):
RA'SHAUN MULLER
Claimant short name:
MULLER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
95540
Motion number(s):

Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
RA'SHAUN MULLER
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Michael Friedman, Assistant Attorney General of counsel
Third-party defendant's attorney:

Signature date:
May 18, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This
pro se Claimant asserts he slipped and fell in a pool of water which came from under the locker of his cell at the Shawangunk Correctional Facility on October 20, 1996 due to negligence by the State of New York (hereinafter "State"). The trial of this Claim was held at Sullivan Correctional Facility on May 10, 2000.

The facts established at trial show that Claimant filed a Claim with the Clerk of the Court in Albany on January 29, 1997.[1]
The Claimant also submitted proof showing that he served a "Notice of Intention to File a Claim" on the Attorney General of the State of New York by certified mail, return receipt requested, on February 14, 1997.

At trial, the State moved to dismiss based upon Claimant's failure to file and serve a claim or serve a notice of intention on the Attorney General within ninety days as required by Court of Claims Act (hereinafter "CCA") 10 and 11. The Attorney General's Office submitted an affidavit at trial admitting service on February 14, 1997 of a document entitled a "Notice of Intention to File Claim". However, the State avers that Claimant never served the Attorney General with the Claim filed with the Clerk of the Court.


It is well-settled that the filing and service requirements contained in CCA 10 and 11 are jurisdictional in nature and must be strictly construed. (
Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). Moreover, it is Claimant's burden to establish proper and timely compliance with these requirements. (Boudreau v Ivanov, 154 Ad2d 638, 639). Here, Claimant was unable to produce any evidence establishing either timely service of the Notice of Intention on the Attorney General or proper and timely service of the Claim on the Attorney General's office.

Consequently, based upon the documentation and testimony presented at the trial of this Claim, the State's motion to dismiss for failure to properly serve the Attorney General in a timely fashion is GRANTED, and Claim No. 95540 is hereby DISMISSED.


ENTER JUDGMENT ACCORDINGLY.

May 18, 2000
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]The Clerk of the Court also received a Notice of Intention from Claimant on January 29, 1997, but returned the document because it was no longer necessary to file a notice of intention pursuant to Chapter 466 of the Laws of 1995, effective August 2, 1995.