New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2002-009-017, Claim No. 98826, Motion No. M-64666


Synopsis


Defendant's motion to dismiss for untimely and improper service was granted.

Case Information

UID:
2002-009-017
Claimant(s):
TROY JOHNSON
Claimant short name:
JOHNSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98826
Motion number(s):
M-64666
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
TROY JOHNSON, 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 dismissal of the claim based upon improper and untimely service.

The following papers were considered by the Court in connection with this motion:
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[3]). 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 mail.

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.


April 18, 2002
Syracuse, New York

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