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). 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.