New York State Court of Claims

New York State Court of Claims

CHAVYS v. THE STATE OF NEW YORK, #2001-009-020, Claim No. 96923A, Motion No. M-62852


Synopsis


Defendant's motion to dismiss based upon insufficient and untimely service of the claim was granted.

Case Information

UID:
2001-009-020
Claimant(s):
JUAN A. CHAVYS
Claimant short name:
CHAVYS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96923A
Motion number(s):
M-62852
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
JUAN A CHAVYS, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Patrick B. Sardino, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
April 23, 2001
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has brought this motion seeking an order dismissing the claim for failure to properly and timely serve the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2


"Notice of Motion" in Opposition, Affidavit 3,4

Filed Papers: Claim, Answer, Amended Claim, Amended Answer.


Claimant has instituted a claim alleging illegal confinement based upon alleged intentional and negligent conduct of the defendant for events occurring at the Cayuga County Supreme Court on January 29, 1996.

A claim alleging acts of negligence against the State must be served on the Attorney General and filed with the Clerk of the Court of Claims within 90 days of accrual, unless a notice of intention is served upon the Attorney General within such 90 days (Court of Claims Act, § 10[3]). A claim alleging an intentional tort against the State must similarly be served upon the Attorney General and filed with the Clerk of the Court of Claims within 90 days of accrual, unless a notice of intention to file a claim is served on the Attorney General within such 90 day period (Court of Claims Act, § 10[3-b]). Additionally, Court of Claims Act, § 11(a) requires that a claim must be served upon the Attorney General either personally or by certified mail, return receipt requested. These provisions are jurisdictional prerequisites 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 both a notice of intention to file a claim and a claim were served on the Attorney General by regular, first class mail, on September 26, 1997. A copy of the envelope in which these papers were served has been attached to the defendant's moving papers (see Exhibit A) and there is no indication on the envelope to establish that the notice of intention and the claim were served by certified mail, return receipt requested, as required by statute.

Defendant further asserts that on November 21, 1997, the Attorney General received an amended claim from the claimant, which was also served by regular, first class mail. A copy of the envelope in which the amended claim was mailed has also been attached to the moving papers (see Exhibit B), with postage of $.55 affixed thereto, satisfying the Court that this amended claim was served by first class mail as well, and not by certified mail, return receipt requested, as required by statute.

Accordingly, this Court finds that the notice of intention and claim which were served on September 26, 1997, and the amended claim served on November 21, 1997, were not served in accordance with the requirements of Court of Claims Act, § 11(a).

Additionally, since the cause of action allegedly accrued on January 29, 1996, the service of the notice of intention to file a claim and claim made on September 26, 1997 were not served within 90 days of accrual. The Court therefore must find that the service of the claim was untimely, and not within the time limits established by Court of Claims Act, § 10.

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 they 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 dismissed both for improper and untimely service.

Accordingly, it is

ORDERED, that Motion No. M-62852 is hereby GRANTED; and it is further

ORDERED, that Claim No. 96923A is hereby DISMISSED.



April 23, 2001
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims