6. Filed papers: Claim, filed January 26, 2001.
Defendant has timely moved, by pre-answer motion, to dismiss the claim.
Defendant initially sought dismissal of the underlying claim based upon
Claimant's failure to serve the claim within the time period prescribed by Court
of Claims Act § 10(3) and for his failure to serve the claim by certified
mail, return receipt requested as required by Court of Claims Act § 11(a)
¶ 6). Following claimant's "answer' to the
motion, Defendant acknowledged personal service of a Notice of
and renewed its assertion the claim
was not properly served. Defendant further maintained that any allegation in
the Claim that was not set forth in the Notice of Intention was untimely
¶¶ 5, 6).
Claimant's opposition to the motion consists of his assertion that his failure
to serve the claim by certified mail, return receipt is "harmless error"
¶ 6) and that he had been given "misinformation
regarding service upon defendants by certified mail"(Spearman Answer
. Claimant did not address
Defendant's assertion that portions of the Claim were untimely filed.
For purposes of this CPLR 3211 (a) (2) and (8) pre-answer motion to
dismiss, the Court assumes the truth of the facts as alleged by the claimant and
draws all inferences from such facts in favor of the non-moving party
(Bassile v Covenant House, 152 Misc 2d 88, affd 191 AD2d 188,
lv to app denied 82 NY2d 656).
Court of Claims Act 11 (a) provides, in relevant part, that a copy of the
claim at issue "shall be served personally or by certified mail, return receipt
requested, upon the attorney general." The requirements set forth in Court of
Claims Act 11 are jurisdictional in nature and, as such, must be strictly
construed (see, Finnerty v New York State Thruway Auth., 75 NY2d
721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d
687; see also, Lichtenstein v State of New York, 93 NY2d 911,
912-913 [applying same principles to requirements of Court of Claims Act §
10]). The Court is not free to temper application of a rule of law, whether
done in the exercise of discretion, equity or because there is no prejudice and
a harsh result will be avoided (see, Martin v State of New York, 185 Misc
2d 799, 804-805, collecting cases).
By conceding the attorney general was not served by certified mail, return
receipt requested, any service by claimant via first class mail is improper
(see, Dreger v New York State Thruway Authority, 81 NY2d 721; Negron v
State of New York, 257 AD2d 652; Philippe v State of New York, 248
AD2d 827). Accordingly, Claimant has failed to meet the literal requirements of
Court of Claims Act § 11, and has therefore not properly commenced his
Although not necessary for resolution of the instant motion by virtue of the
finding the Claim was jurisdictionally defective, were the Court to reach the
issue, the Court would find any allegation in the Claim filed on January 26,
2001, and not set forth in the Notice of Intention (Spearman Answer,
Exhibit B), as untimely. The Notice of Intention, properly served on the
Attorney General on April 24, 2000 (Resnick Reply ¶ 3), and as to
the events of January 29, 2000, timely filed, was very specific in alleging 1)
that on January 29, 2000 Claimant was assaulted and otherwise mistreated by
correction officers and 2) the hiring and retention of those officers was
negligent. Accordingly, only those two allegations could be the beneficiary of
the extension provisions of Court of Claims Act §§ 10 [3-b] and ,
respectively. Claimant's varied and assorted allegations regarding destruction
of personal property, denial of medical attention, harassment, retaliation and
constitutional claims, alleged as having accrued between November 30, 1999 and
February 8, 2000, absent a properly served Notice of Intention, were not timely
commenced in a claim filed and served in January, 2001.
The Court, having found that Claimant did not serve the claim by certified
mail, return receipt requested, hereby grants the Defendant's motion to dismiss
the claim. Accordingly, Claim No. 103736 shall be and hereby is