New York State Court of Claims

New York State Court of Claims

MCINTYRE v. THE STATE OF NEW YORK, #2002-005-543, Claim No. 106371, Motion No. M-65731


Synopsis


Defendant's motion for dismissal of the claim on the grounds of untimely and improper service is granted.

Case Information

UID:
2002-005-543
Claimant(s):
KYWONG McINTYRE
Claimant short name:
MCINTYRE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106371
Motion number(s):
M-65731
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Kywong McIntyre,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Heather R. Rubinstein, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 21, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On September 18, 2002, the following papers, numbered 1 to 3, were read on motion by Defendant for dismissal of the claim:

Papers Numbered

1, 2 Notice of Motion, Affirmation and Exhibits Annexed
  1. Opposing Papers
  1. Filed Papers: Claim
Upon the foregoing papers, this motion is granted.

In lieu of an Answer, the Defendant moves to dismiss the claim herein due to an alleged lack of jurisdiction for the purported failure to comply with §§10 and 11 of the Court of Claims Act. The underlying claim, filed on July 17, 2002, alleges that Claimant sustained personal injuries at the Five Points Correctional Facility on November 1, 2000, at approximately 7:00 a.m. when the mattress upon which he was sleeping slid off the frame and fell to the floor. It alleges personal injuries as well as contentions that Defendant "acted carelessly in treating [his] medical condition."

First, it is alleged that a Notice of Intention to file a claim was improperly served upon the Defendant by regular mail on February 1, 2001. A claim was served by certified mail, return receipt requested, on July 17, 2002. Court of Claims Act §10(3) requires the service and filing of a claim within 90 days of its accrual, unless a Notice of Intention to file a claim is timely and properly served within said 90 days, in which case Claimant has two years from the date of accrual to serve and file his claim.

Court of Claims Act §11(a) requires service upon the Defendant be accomplished by personal service or certified mail return receipt requested. The manner of service is a jurisdictional issue (Philippe v State of New York, 248 AD2d 827, where an inmate's use of ordinary mail was insufficient to acquire jurisdiction over the State). A review of the moving papers herein reveals that the Notice of Intention to file a claim was served upon the Defendant by regular mail (see Exhibit A to the moving papers). The envelope with which Claimant served the Notice of Intention is consistent with service by regular mail.

Furthermore, the Notice of Intention itself was received by the Defendant on February 1, 2001, the 92nd day after accrual of the underlying cause of action. The Defendant argues that since the Notice of Intention was not served within 90 days, it is untimely, and cannot be relied upon by the Claimant to extend his time to serve and file his claim. Thus regardless of the fact that the claim was served by certified mail return receipt requested (Exhibit B), as required by §11(a), no claim or Notice of Intention was timely or properly served within 90 days of accrual of the cause of action.

The papers before the court, as appended to the moving papers, are unrefuted, and Claimant has defaulted on this motion. The claim must be dismissed.

Court of Claims Act §10(3) requires that a claim shall be filed and served upon the attorney general within 90 days after the accrual of such claim. Here it is clear that the cause of action accrued on November 1, 2000, and thus the service of the claim on July 17, 2002, was untimely. On that basis alone, the claim was untimely served and must be dismissed. Of course, improper and untimely service of the Notice of Intention also requires dismissal of the claim.

Accordingly, the motion to dismiss is granted on both grounds sought, the untimely service of the Notice of Intention and claim, both more than 90 days after accrual of the underlying causes of action, and the improper service of the Notice of Intention to file a claim by regular mail.


October 21, 2002
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims