Supplemental Submission to Affirmation in Opposition, including deposition
transcript of claimant and receipt for fine paid on May 1, 1998 4
As set forth in his claim, claimant asserts causes of action based on
negligence, the intentional infliction of emotional distress, and a violation of
his State Constitutional rights, all stemming from events which occurred on
April 29, 1998.
On that date, claimant and his son were traveling on the New York State Thruway
when he was stopped by a New York State Police trooper. As claimant then
discovered, this stop was made pursuant to a warrant issued by the Village
Court of the Village of Canastota. As set forth in this claim, claimant had
previously been assessed a fine in the amount of $105.00 by the Canastota
Village Court in 1995. Claimant alleges that he paid this fine in 1995, but
that the Canastota Village Court was negligent in failing to cash the money
order which had been mailed to the Court by claimant. The Canastota Village
Court subsequently issued a warrant for claimant's arrest on April 28, 1998, and
claimant was detained by the New York State Police the following day.
This claim was filed with the Clerk of the Court of Claims on June 22, 1998,
and was served upon the Attorney General on June 24, 1998.
Defendant now moves to dismiss this claim.
Pursuant to the provisions of the Court of Claims Act which are relevant
herein, a claim 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 and [3-b]). Furthermore, Court of Claims Act, § 11(a) requires that
a claim be served upon the Attorney General either by personal delivery or by
certified mail, return receipt requested. This is a jurisdictional prerequisite
to the maintenance of a claim and as such, must be strictly construed
(Greenspan Bros. V State of New York, 122 AD2d 249).
In this case, defendant asserts that the claim was served upon the Attorney
General by regular, first class mail. A copy of the envelope in which the claim
was served, attached to the moving papers (see Exhibit A), has postage of $.55
affixed thereto, satisfying the Court that the claim was served by first class
mail, and not by certified mail, return receipt requested, as required by
Accordingly, this Court finds that the claim which was served on June 24, 1998
was not served in accordance with the requirements of Court of Claims Act,
Subsequently, and apparently after receiving defendant's answer alleging
improper service as an affirmative defense, claimant again served the claim on
the Attorney General on August 17, 1998, this time by certified mail, return
receipt requested. Since the cause of action accrued on April 29, 1998,
however, this claim was not served within 90 days of accrual. The Court
therefore finds that this second service of the claim was untimely.
Furthermore, service of the first claim, which was not properly served, must be
considered a nullity, and therefore cannot operate to extend the time in which
claimant must file and serve a claim.
The service and filing requirements of the Court of Claims Act are
jurisdictional prerequisites to the institution and maintenance of a claim
against the State, and therefore must be strictly construed (Finnerty v New
York State Thruway Authority, 75 NY2d 721; Byrne v State of New York,
104 AD2d 782, lv denied 64 NY2d 607). This claim, therefore, must be
Since this Court has determined that the claim must be dismissed for improper
and untimely service, it is not necessary for the Court to address that aspect
of defendant's motion seeking dismissal of the claim for failure to state a
cause of action.
Accordingly, it is
ORDERED, that Motion No. M-62880 is hereby GRANTED; and it is further
ORDERED, that Claim No. 98503 is hereby DISMISSED.