New York State Court of Claims

New York State Court of Claims

THOMAS v. THE STATE OF NEW YORK, #2001-019-529, Claim No. 90828, Motion No. M-63441


State's motion to dismiss claim based upon Claimant's failure to serve notice of intention or claim is granted.

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:
BY: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
May 17, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The State of New York (hereinafter "State") moves for an Order dismissing this Claim pursuant to Court of Claims Act (hereinafter "CCA") 10 and 11, as well as on the grounds of payment and release. Claimant, an inmate appearing pro se, opposes the motion and requests the issuance of a subpoena compelling his own production at trial.

The Court has considered the following papers in connection with this motion.
  1. Claim, filed December 23, 1994.
  2. Notice of Motion No. M-63441, dated April 30, 2001, and filed May 2, 2001.
  3. Affirmation of Carol A. Cocchiola, AAG, in support of motion, dated April 30, 2001, with attached exhibits.
  4. Affidavit of Carol A. McKay, in support of motion, sworn to April 26, 2001.
  1. Affidavit of Victor K. Thomas, in opposition to motion, sworn to May 4, 2001.
This matter is scheduled for trial on July 17, 2001 at Elmira Correctional Facility. This Claim arose when Claimant was allegedly assaulted at the Elmira Correctional Facility on November 29, 1994 resulting in injuries to his right eye. Claimant filed a Notice of Intention in the Office of the Clerk on December 23, 1994 and filed a Claim on that same date which was assigned Claim No. 90828. Additionally, the Court's file contains an affidavit of service from Claimant dated December 16, 1994 indicating service by regular mail of the Notice of Intention and the Claim on the Attorney General. Parenthetically, the Court notes that it appears that Claimant commenced at least two other lawsuits concerning this incident, one in the Court of Claims (Claim No. 90838-A) and the other in the United States District Court for the Western District of New York (Docket No. 95 CV 6056).[2]

By way of this motion the State moves for dismissal of Claim No. 90828 on the grounds this Court lacks jurisdiction because neither the Notice of Intention nor the Claim were ever served on the Attorney General's office pursuant to CCA 10 and 11. The State submits an affidavit from Carol A. McKay, a senior clerk in the Attorney General's office who avers that: "[b]ased upon my review of the files in the Office of the Attorney General of the State of New York, Albany Claims Bureau, I find no record that the Notice of Intention to file a Claim and Claim in this matter were ever served on the Attorney General." (Affidavit of Carol A. McKay, ¶ 4). In opposition, Claimant asserts that this "[a]ction was commenced on or about December, 1994 by service to the...Attorney General's Office which gives this Court jurisdiction over this claim". (Claimant's Affidavit, ¶ 3).

It is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in CCA 10 and 11 are jurisdictional in nature and must be strictly construed. (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). At the time this matter arose, CCA 11 required that a claim or notice of intention be filed with the Office of the Clerk and served personally or by certified mail, return receipt requested, upon the attorney general within the statutory time period.[3] Claimant's affidavit of service on file with the Court demonstrates service of the Notice of Intention and Claim by regular mail, rather than personally or by certified mail, return receipt requested, as required by CCA 11. The State denies service by any method. In any event, Claimant has failed to come forward with any proof establishing proper and timely service of the Notice and Intention or Claim in compliance with CCA 10 & 11 as is his burden. (Boudreau v Ivanov, 154 AD2d 638, 639). As such, Claim No. 90828 must be dismissed and the Court need not reach the State's remaining arguments relative to payment and release. Claimant's request for a subpoena compelling his own production for trial is moot inasmuch as the Claim is dismissed and the case stricken from the Court's calendar.

Accordingly, for the reasons stated above, it is ORDERED that the State's motion to dismiss, Motion No. M-63441, is GRANTED and Claim No. 90828 is DISMISSED.

May 17, 2001
Binghamton, New York

Judge of the Court of Claims

[1]The Court notes that this paper is entitled a "Notice of Motion", but appears to be an affidavit in opposition which is how the Court is treating same.
[2]Apparently, the parties reached a monetary settlement in the Federal litigation which encompassed, at a minimum, Claim No. 90838-A and, arguably, Claim No. 90828. However, due to the jurisdictional issue raised herein the Court need not address the merits of the State's argument of payment and release.
[3]A subsequent amendment to CCA 11, effective August 2, 1995, eliminated the requirement of filing a notice of intention in the Office of the Clerk. (L.1995, c. 466).