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). 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
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.