Notice of Motion, Affirmation, with Exhibits 1,2
Claimant did not submit any papers in opposition, nor did he contact the Court
in any manner whatsoever regarding this motion.
This claim seeks damages for injuries allegedly suffered by claimant in an
assault by a fellow inmate while claimant was incarcerated at Cape Vincent
Correctional Facility on May 29, 1998.
In her affirmation in support, the Assistant Attorney General handling this
claim on behalf of the State acknowledges that a notice of intention to file a
claim and a claim were received by the defendant on August 19, 1998, and that
they were served by regular, first class mail. Defendant has submitted a
photocopy of the envelope in which these papers were mailed, on which postage of
$.32 was affixed, establishing to the satisfaction of this Court that the notice
of intention and the claim were served by regular, first class mail (see Exhibit
A to Items 1,2). Shortly thereafter, on August 27, 1998, claimant re-served the
notice of intention to file a claim on the Attorney General, this time with
service made by certified mail, return receipt requested. Defendant has
submitted a photocopy of this envelope, with a copy of the notice of intention
that was enclosed therein (see, Exhibit B to Items 1,2).
A claim premised upon negligence must be served on the Attorney General and
filed with the Clerk of the Court of Claims within 90 days of accrual (Court of
Claims Act, § 10). The time for serving and filing a claim, however,
can be extended if a notice of intention is properly served upon the Attorney
General within such 90 days. Pursuant to § 11(a) of the Court of Claims
Act, both a notice of intention and a claim must be served personally or by
certified mail, return receipt requested.
In this case, defendant asserts that the claim was improperly served on August
19, 1998, since it was mailed to the Attorney General by regular, first class
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 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). In this matter, the claim, having
been served by regular mail on August 19, 1998, was not served in accordance
with the requirements of Court of Claims Act, § 11(a). In this case,
however, claimant apparently recognized the defect in service and re-served his
notice of intention by certified mail, return receipt requested, with service
being effected on August 27, 1998, the 90th day from accrual of his cause of
action. Since the notice of intention was timely and properly served in
accordance with the provisions of Court of Claims Act, § 11(a), claimant's
time to properly serve a claim upon the Attorney General was extended to two
years from accrual of his claim. However, there is no affidavit of service or
any other evidence before the Court which would indicate that the claim was then
properly served upon the Attorney General within the two year time period
following accrual of the claim provided by Court of Claims Act, § 10(3).
Accordingly, this Court must find that the claim was not timely or properly
served and it must therefore be dismissed.
The Court notes that defendant also sought dismissal of this claim based upon
claimant's failure to verify his claim in accordance with Court of Claims Act,
§ 11(b). In view of this Court's dismissal of the claim for improper and
untimely service, it is not necessary to address this issue herein.
Accordingly, it is
ORDERED, that Motion No. M-64666 is hereby GRANTED; and it is further
ORDERED, that Claim No. 98826 is hereby DISMISSED.