New York State Court of Claims

New York State Court of Claims

PETERSON v. THE STATE OF NEW YORK, #2002-009-003, Claim No. 100518, Motion No. M-64350


Synopsis


Defendant's motion to dismiss the claim based upon improper service (regular mail) was granted.

Case Information

UID:
2002-009-003
Claimant(s):
KENNETH PETERSON
Claimant short name:
PETERSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100518
Motion number(s):
M-64350
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
KENNETH PETERSON, 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:
January 23, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking an order dismissing the claim for failure to properly serve the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2

Filed Papers: Claim, Answer.

Claimant has not submitted any papers in opposition, nor has he communicated with the Court in any manner whatsoever regarding this motion.

This claim seeks damages for personal injuries suffered by claimant on May 7, 1999, when claimant was allegedly injured while working as part of a maintenance crew while incarcerated at Watertown Correctional Facility. The claim is apparently based upon alleged acts of negligence committed by the State.

A claim alleging acts of negligence against the State must be served on the Attorney General and filed with the Clerk of the Court of Claims within 90 days of accrual, unless a notice of intention is served upon the Attorney General within such 90 days (Court of Claims Act, § 10[3]). Additionally, Court of Claims Act, § 11(a) requires that a notice of intention to file a claim and/or a claim must be served upon the Attorney General either personally or by certified mail, return receipt requested. These provisions are jurisdictional prerequisites to the maintenance of a claim, and as such must be strictly construed (Greenspan Bros. v State of New York, 122 AD2d 249).

In this case, defendant asserts that both a notice of intention to file a claim and a claim were served on the Attorney General by regular, first class mail, on June 9, 1999. Although defendant's attorney asserts in her moving papers that a copy of the envelope in which these papers were served has been attached to defendant's moving papers, the Court has been unable to locate such copy. However, as noted above, claimant has not responded to this motion, and has not contested the affirmation of defendant's attorney that the notice of intention and the claim were served by regular mail.

Accordingly, this Court finds that the notice of intention and claim served on June 9, 1999, were not served in accordance with the requirements of Court of Claims Act, § 11(a).

The Court further finds that the defendant properly raised the defense of improper service, with particularity, of both the notice of intention and the claim in its answer (see Answer, par. 22 and 23), as required by § 11(c) of the Court of Claims Act.

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 they 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).

This claim, therefore, must be dismissed for improper service.

Accordingly, it is

ORDERED, that Motion No. M-64350 is hereby GRANTED; and it is further

ORDERED, that Claim No. 100518 is hereby DISMISSED.


January 23, 2002
Syracuse, New York

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