New York State Court of Claims

New York State Court of Claims

PATTERSON v. THE STATE OF NEW YORK, #2002-009-16, Claim No. 100709, Motion No. M-64671


Synopsis


Defendant's motion to dismiss the claim for improper service was granted.

Case Information

UID:
2002-009-16
Claimant(s):
VICTOR PATTERSON The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
PATTERSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100709
Motion number(s):
M-64671
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
VICTOR PATTERSON, 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:
April 18, 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.

In this claim, claimant seeks damages for personal injuries suffered by him in an alleged assault by a fellow inmate at Watertown Correctional Facility on February 28, 1999.

In her affirmation in support of this motion to dismiss, the Assistant Attorney General handling this claim on behalf of the State affirms that a notice of intention to file a claim was served upon the Attorney General by certified mail, return receipt requested on April 2, 1999 (see, Exhibit A to Items 1,2).

She also affirms that the claim was then served upon the defendant by regular mail on July 12, 1999. Defendant has submitted a photocopy of the envelope in which the claim was received, on which postage of $.55 was affixed, establishing to the satisfaction of this Court that the claim was served by regular, first class mail (see, Exhibit B to Items 1,2).

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, in which case the claim must be served and filed within two years from accrual (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, although defendant acknowledges that the notice of intention to file a claim was timely and properly served, the claim, which was served by regular, first class mail on July 12, 1999, was improperly served. Since this claim accrued on February 28, 1999, the two year time period available to claimant to timely serve and file his claim (since he had timely and properly served a notice of intention) provided by Court of Claims Act, § 10(3) has expired.

The Court must therefore find that the claim served on July 12, 1999 was not served in accordance with the requirements of Court of Claims Act, § 11(a).

The Court further finds that defendant properly raised the defense of improper service of the claim, with particularity, in its answer (see Answer, par. 21), 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-64671 is hereby GRANTED; and it is further

ORDERED, that Claim No. 100709 is hereby DISMISSED.

April 18, 2002
Syracuse, New York

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