New York State Court of Claims

New York State Court of Claims

MONTES v. THE STATE OF NEW YORK, #2001-013-007, Claim No. 98706, Motion No. M-63400


Defendant's motion to dismiss the claim is granted because it was served by regular mail (Court of Claims Act §11[a]). Language used in the answer was sufficiently particular to preserve the defense of improper service (Court of Claims Act §11[c]).

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: PAUL VOLCY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 24, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant's motion to dismiss on the ground that the claim was improperly served:

1. Notice of Motion and Supporting Affidavit with Annexed Exhibits

2. Affidavit in Opposition ((None Received)

3. Filed Papers: Claim, Answer

This bailment action arose in either April or May 1997[1] when Claimant was moved from one housing unit within Wende Correctional Facility to another and then transferred to another facility. Claimant served a notice of intention to file a claim on the Attorney General on October 3, 1997, and the claim was subsequently filed with the Court and served on the Attorney General on July 27, 1998.

In its answer, Defendant State of New York set forth the following as its sixth affirmative defense:[2]

Upon information and belief, this Court lacks jurisdiction because of Claimant's failure to timely and properly serve a Claim and commence an action as required by Sections 9, 10 and 11 of the Court of Claims Act. Claimant failed to timely serve a Notice of Intention to File Claim or a Claim within ninety (90) days of the alleged incident of April 14, 1997. The Notice of Intention to File Claims was received in the Attorney General's Office on October 3, 1997 and the Claim was received on July 27, 1998, more than ninety (90) days after the alleged incident. Court of Claims Act, Section 11, requires that service on the State of New York be made personally on the Attorney General or by Certified Mail, Return Receipt Requested, to the Attorney General. Claimant served the Claim by Regular Mail.

Although it is unduly circuitous, this language sets forth the affirmative defense of improper service[3] with sufficient particularity to satisfy the requirement of Section 11(c) of the Court of Claims Act, as it provides "adequate and clear notice to any reasonable person that a defect is claimed to exist and that it may at some point be used as the basis of a motion to dismiss" (Sinacore v State of New York, 176 Misc 2d 1, 6; see also, Fowles v State of New York, 152 Misc 2d 837) and refers both to the relevant statute and to the requirement that should have been met (see, Smith v State of New York, Ct Cl, July 20, 1993 [Claim No. 85799, Motion No. M-48029], Benza, J.; Kanaval v State of New York, Ct Cl, July 20, 1993 [Claim No. 86053, Motion No. M-47990], Benza, J.).

Defendant has now moved for summary judgment dismissing the claim on the ground that it was improperly served. In support of the motion, defense counsel has submitted copies of the Department of Law's receipt-stamped copies of the notice of intention and claim and envelopes in which they were received (notice of motion, Exhibits A and B). While the notice of intention was properly served by certified mail, return receipt requested, (Exhibit A), the envelope in which the claim was received shows that it was sent by regular mail (Exhibit B) Claimant has made no submission in opposition to the motion.

Failure to comply with the time and manner of service requirements contained in Sections 10 and 11 of the Court of Claims Act is a fatal jurisdictional defect and deprives this Court of the power to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721, 724; Bogel v State of New York, 175 AD2d 493). Consequently, Defendant's motion is granted, and Claim No. 98706 is dismissed.

May 24, 2001
Rochester, New York

Judge of the Court of Claims

  1. [1]Claimant's notice of intention gives one date, while the claim indicates the other.
  2. [2]The State's fifth and seventh affirmative defenses also refer in less-detailed fashion to claimant's failure to comply with the time and service requirements of the Court of Claims Act.
  3. [3]This statement can also be read to set forth the defense of untimeliness but it is not necessary to address that issue, or to determine whether that defense is set forth with particularity.