New York State Court of Claims

New York State Court of Claims

WHITT v. THE STATE OF NEW YORK, #2001-009-050, Claim No. 93202, Motion No. M-64105


Synopsis


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

Case Information

UID:
2001-009-050
Claimant(s):
KHARY WHITT
Claimant short name:
WHITT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
93202
Motion number(s):
M-64105
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
KHARY WHITT, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Heather R. Rubinstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

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

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking dismissal of the claim based upon improper and untimely service.

The following papers were considered by the Court in connection with this motion:
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 requested.

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[3]). 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 General.

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 dismissed.

Accordingly, it is

ORDERED, that Motion No. M-64105 is hereby GRANTED; and it is further

ORDERED, that Claim No. 93202 is hereby DISMISSED.


October 23, 2001
Syracuse, New York

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