Correspondence Dated July 13, 2001 from Roger B. Williams, Esq., Assistant
Attorney General 3
Filed Papers: Claim, Answer
As set forth in the filed claim
seek money damages in the nature of lost wages resulting from physical damage to
their place of employment allegedly caused by the negligence of the State.
Claimants allege that on February 19, 1999, a New York State Department of
Transportation snowplow or truck was left unattended, and rolled into a building
where claimants were working, causing damage to the building, requiring
claimants' employer to temporarily close his business, and resulting in a loss
of wages to the claimants. As set forth in the moving papers herein, on May 10,
1999, claimants mailed a notice of intention to file a claim to the Attorney
General, utilizing express mail (overnight delivery) of the United States Postal
Service (see, Exhibit A to Items 1,2). Subsequently, a claim was served upon
the Attorney General by certified mail, return receipt requested, on September
27, 2000. The claim was then filed with the Clerk of the Court of Claims on
October 24, 2000.
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). If a notice of
intention is so served upon the Attorney General, the claim must then be served
and filed within two years from the date of accrual. Additionally, Court of
Claims Act, § 11(a) requires that a claim or a notice of intention must be
served upon the Attorney General either personally or by certified mail, return
In this matter, although the notice of intention was timely served within 90
days of the date of accrual, the notice was served by overnight, express mail,
and not by certified mail, return receipt requested, as required by statute.
Service by United States Postal Service express mail, however, does not comply
with the statute, and is not valid (Hodge v State of New York, 158 Misc
2d 438, affd 213 AD2d 766).
The provisions relating to the time and manner of service and filing 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).
As a result, this Court does not have the authority to cure or overlook defects
in the time and/or manner of service and filing, assuming that such defenses are
properly raised by the defendant either in its responsive pleading or by a
motion to dismiss made prior to service of said responsive pleading, as required
by Court of Claims Act, § 11(c).
Accordingly, even though the notice of intention was timely served upon the
Attorney General in this claim, it must be viewed as a nullity since it was not
served in accordance with statute. As a result, claimants were therefore not
entitled to the extension of time in which to serve and file a claim provided by
§ 10(3). Since the improperly served notice of intention did not provide
claimants with the additional time in which to serve and file a claim, this
claim had to be served and filed within 90 days from accrual of the cause of
action. As a result, even though Claim No. 103266 was eventually served and
filed within two years from the date of accrual (which would have been timely
had the notice of intention been properly served upon the Attorney General), the
claim was served and filed well beyond the 90 day time period set forth in
Since it is undisputed that Claim No. 103266 was served and filed beyond the
time limitations set forth in § 10(3), it is subject to dismissal. In its
response to this motion, however, defendant did not seek such relief. The
Court, however, in the interest of judicial economy and on its own motion,
hereby dismisses the claim.
As a result, it is now necessary for the Court to consider claimants'
application for late claim relief.
In order to determine an application for permission to serve and file a late
claim, the Court must consider, among other relevant factors, the six factors
set forth in § 10(6) of the Court of Claims Act. The factors set forth
therein are: (1) whether the delay in filing the claim was excusable; (2)
whether the State had notice of the essential facts constituting the claim; (3)
whether the State had an opportunity to investigate the circumstances underlying
the claim; (4) whether the claim appears meritorious; (5) whether substantial
prejudice resulted from the failure to timely file and the failure to serve upon
the Attorney General a timely claim or notice of intention to file a claim; and
(6) whether any other remedy is available. The Court is afforded considerable
discretion in determining whether to permit the late filing of a claim (see,
Matter of Gavigan v State of New York, 176 AD2d 1117).
In the moving papers, claimants have not addressed the factors of excuse or
other available remedies. For purposes of this motion, however, claimants have
asserted a meritorious claim, alleging negligence in leaving the State-owned
truck or plow unattended.
Additionally, even though it was not properly served, the notice of intention
which was received by the Attorney General did provide the State with notice of
the essential facts, and an opportunity to investigate the claim, within 90 days
of its occurrence. As a result, and as indicated in the correspondence from the
Assistant Attorney General handling the defense of this claim (see, Item 3), the
State will not be prejudiced if the Court grants this application.
The Court may in its discretion place as much or as little weight on any of the
six factors to be considered pursuant to the statute. Under the current law
"[n]othing in the statute makes the presence or absence of any one factor
determinative" (Bay Terrace Coop. Section IV v New York State Employees'
Retirement System Policemen's & Firemen's Retirement System, 55 NY2d
979) and none of the factors can require denial as a matter of law.
Upon weighing and considering all of the factors set forth herein, and viewing
all of the factors set forth in Court of Claims Act, Section 10(6), it is the
opinion of this Court that claimants should be allowed to file their proposed
Incidentally, in its review of the claim and filed papers submitted with this
motion, the Court has noted an apparent misspelling in the caption of this
claim. When preparing the new claim permitted by this order, it is suggested
that counsel for the claimants verify the correct spelling of the name of each
Accordingly, it is
ORDERED, that Claim No. 103266 is hereby DISMISSED, sua sponte; and it
ORDERED, that Motion No. M-63598 is hereby GRANTED, and claimants are directed
to serve their claim upon the Attorney General and to file the claim (such claim
to be identical to Claim No. 103266) with the Chief Clerk of the Court of Claims
within 45 days from the date of filing of this decision and order in the Clerk's
office, with such service and filing to be in accordance with the Court of
Claims Act, with particular reference to Sections 10, 11 and 11-a, and the
Uniform Rules for the Court of Claims.