New York State Court of Claims

New York State Court of Claims

BROWN v. WATERTOWN CORRECTIONAL FACILITY MEDICAL UNIT, #2001-009-033, Claim No. 102106, Motion No. M-63349


Synopsis


Defendant's motion to dismiss for improper and untimely service of the claim was granted.

Case Information

UID:
2001-009-033
Claimant(s):
CURTIS BROWN
Claimant short name:
BROWN
Footnote (claimant name) :

Defendant(s):
WATERTOWN CORRECTIONAL FACILITY MEDICAL UNIT
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102106
Motion number(s):
M-63349
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
CURTIS BROWN, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Timothy P. Mulvey, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
July 20, 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 Exhibit 1,2


Filed Papers: Claim

Claimant has not submitted any papers in opposition, nor has he communicated with the Court in any manner whatsoever regarding this motion.

In his claim, claimant seeks damages for personal injuries when he was allegedly injured in the shower area at Watertown Correctional Facility on January 26, 2000, and that he was subsequently deprived of adequate medical treatment while incarcerated at the facility.

In his affirmation in support of this motion, defendant's attorney asserts that a notice of intention to file a claim was never served upon the Attorney General, and that the claim was served upon the Attorney General on March 5, 2001, by regular, first class mail. The claim was received by and filed with the Chief Clerk of the Court of Claims on March 10, 2000. With the filed claim, claimant also included an affidavit of service by mail, sworn to on March 6, 2000, in which claimant states that a copy of the claim was mailed to the Attorney General's office, but does not specify the date on which the claim was mailed.

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]). Furthermore, 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).

Claimant's affidavit of service, even though sworn to on March 6, 2000, is silent as to the date on which the claim was mailed to the Attorney General. A copy of the claim received by the Attorney General, however, is marked as received March 5, 2001, and the copy of the envelope in which it was mailed has a post mark clearly indicating a date of March 2, 2001. Accordingly, this Court finds that the claim was served March 5, 2001, the date of receipt by the Attorney General. Since there is no indication that a notice of intention to file a claim had been served upon the Attorney General, the Court must therefore find that the service of the claim was untimely, since it was not served within 90 days of accrual as required by Court of Claims Act, § 10(3).

Additionally, it is undisputed that the claim was served on the Attorney General by regular, first class mail, and not by certified mail, return receipt requested, as required by Court of Claims Act, § 11(a). Defendant has submitted a copy of the envelope in which the claim was served (see Exhibit A) which indicates postage of $.34 affixed thereto, satisfying this Court that the claim was served by first class mail.

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 dismissed both for improper and untimely service.

Accordingly, it is

ORDERED, that Motion No. M-63349 is hereby GRANTED; and it is further

ORDERED, that Claim No. 102106 is hereby DISMISSED.


July 20, 2001
Syracuse, New York

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