Notice of Motion, Affirmation, with Exhibits 1,2
Claimant did not submit any papers in opposition, nor did he contact the Court
in any manner whatsoever regarding this motion.
This claim seeks damages for injuries allegedly suffered by claimant in an
assault by fellow inmates at Gouverneur Correctional Facility on July 3, 1995.
In her affirmation in support, the Assistant Attorney General handling this
claim on behalf of the State acknowledges that a notice of intention to file a
claim was received by the defendant on August 21, 1995, and that it was served
by regular, first class mail. Defendant has submitted a photocopy of the
envelope in which the notice of intention was received, on which postage of $.32
was affixed, establishing to the satisfaction of this Court that the notice of
intention was served by regular, first class mail (see Exhibit A to Items 1,2).
Subsequently, this claim was filed with the Clerk of the Court of Claims on
January 4, 1996 and, according to defendant's affirmation, was served on the
Attorney General on January 4, 1996, by certified mail, return receipt
A claim premised upon negligence 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). The time for serving and filing a claim, however,
can be extended if a notice of intention is properly served upon the Attorney
General within such 90 days. Pursuant to § 11(a) of the Court of Claims
Act, both a notice of intention and a claim must be served personally or by
certified mail, return receipt requested.
In this case, defendant asserts that the notice of intention was improperly
served, since it was mailed to the Attorney General by regular, first class
mail, and as a result the claim itself was not timely served upon the Attorney
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). In this case, the notice of
intention, having been served by regular mail, was not served in accordance with
the requirements of Court of Claims Act, § 11(a). Since the notice of
intention was not properly served upon the Attorney General within 90 days of
accrual, it must be considered a nullity, and it did not extend the time in
which to file and serve a claim. It is undisputed that the claim was not served
and filed within 90 days of accrual, and as a result this Court must find that
the claim was not timely served or filed. This claim, therefore, must be
Accordingly, it is
ORDERED, that Motion No. M-64105 is hereby GRANTED; and it is further
ORDERED, that Claim No. 93202 is hereby DISMISSED.