New York State Court of Claims

New York State Court of Claims

WRIGHT v. THE STATE OF NEW YORK, #2002-013-007, Claim No. 104699, Motion No. M-64593


A notice of intention may be treated as a claim (Court of Claims Act §10[8]) where the Claimant has completely failed to file and serve a timely claim and where the Claimant attempted to do so but failed because an improper method of service was employed. However, a notice of intention may not be treated as a claim where, if it had in fact been a claim, it would have been premature.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 6, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On February 20, 2002, the following papers were read on Claimant's motion to have his notice of intention deemed a claim:
1. Notice of Motion and Supporting Affidavit of Lawrence Wright ("Wright Affidavit")

2. Affirmation in Opposition of Thomas G. Ramsay, Esq. ("Ramsay Affirmation")

3. Letter Reply of Lawrence Wright ("Wright Reply Letter")

4. Filed Papers: Claim; Answer

This is a bailment claim that arose on or about January 25, 2001 at the Orleans Correctional Facility (Orleans). In his affidavit in support of this motion, Claimant states that on March 30, 2001,[1] within 90 days of the claim's accrual, he sent a verified notice of intention to file a claim to the Attorney General by certified mail, return receipt requested. He also states that he subsequently received the return receipt proving that the notice of intention was received by the Office of the Attorney General. Sometime later, he filed and served his claim, but, interpreting the Court of Claims Act §11(a) to require only that the notice of intention be served by certified mail, return receipt requested, he served the claim by regular mail. In Defendant's answer, the improper service of the claim was raised as an affirmative defense, with sufficient particularity to satisfy the requirement of Court of Claims Act §11(c).[2]

Conceding the validity of that defense, Claimant has now moved, pursuant to Court of Claims Act §10(8)(a), for permission to have his timely and properly served notice of intention deemed the claim in this action.

Section 10(8)(a) of the Court of Claims Act provides, in relevant part, as follows:
A claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim.
Counsel for Defendant opposes the motion, arguing that, by the express language of the statute, the relief is available only to those who "fail to timely serve or file a claim," not to litigants such as Claimant who did file and serve their claim but used an improper method of service.

It is true that, in a number of contexts, it has been held that the "literal requirements" or "statutory imperatives" of the Court of Claims Act must be strictly construed (see, Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ["Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed"]; Lichtenstein v State of New York, 93 NY2d 911 [Section 10(2), which provides for wrongful death actions to be commenced after appointment of executor or administrator, requires dismissal of action commenced prior to such appointment]; Martin v State of New York, 185 Misc 2d 799 [the requirement of Section 11(b) that claims be verified is jurisdictional]).

While it is possible to read the first sentence of section 10(8) in the restrictive manner proposed by counsel for Defendant, to do so would be to ignore the history and purpose of the remedy that was codified in that statute, as well as the long-time practice of the courts in implementing the remedy. There is another interpretation of the statutory language that is entirely compatible with that history, purpose and practice.

The Court's power to "deem" a notice of intention to be the claim in a Court of Claims action was first established by case law (see, Chalmers & Son v State of New York, 271 App Div 699, affd 297 NY 690; Carnesi v State of New York, 140 AD2d 912; Artale v State of New York, 140 AD2d 919; Barski v State of New York, 43 AD2d 767). The Legislature subsequently codified this remedy by enacting Section 10(8). Although the scope of the remedy was significantly limited by the Legislature, making it unavailable after CPLR Article 2 statutes of limitations had tolled, at no time has any distinction been made between those who altogether failed to file and serve a claim within the appropriate time period, and those who tried to do so but failed because the claim was improperly served. Applications from claimants whose failure to use proper service have been considered as readily as those from claimants who simply failed to act (see, Edens v State of New York, 259 AD2d 729; Hodge v State of New York, 213 AD2d 766; Cobb v State of New York, Ct Cl, Jan. 11, 2001 [Claim No. 102558 - Motion Nos. M-62841 and CM-62892 - MacLaw No. 2000-006-963], NeMoyer, J)[3]. Indeed, if any distinction were to be made, one would think that those litigants who at least tried to commence their actions in a timely fashion would be favored over those who simply ignored the requirement that a claim be filed and served. Defendant's interpretation would have the opposite result.

The reason the statute makes no mention of claimants who tried -- but failed -- to serve their claims becomes clear when one considers that an improperly served claim is, in essence, a nullity: it does not obtain jurisdiction over the Defendant and does not commence an action in the Court of Claims. "Service of a claim which is not in accordance with Court of Claims Act §11 does not confer personal jurisdiction over the State and no action is commenced" (Hodge v State of New York, supra at 767, citing to Sciarabba v State of New York, 152 AD2d 229, 231 ["Because service was a nullity, no action had been actually commenced"]). For this reason, those who improperly served their claim are no different than those who made no effort at all - they both have failed to timely file or serve their claims. I therefore reject Defendant's argument in opposition to this motion.

There is another problem, however, with Claimant's request for relief. Because this is a claim for property loss brought by an inmate, Section 10(9) of the Court of Claims Act provides:
A claim of any inmate in the custody of the department of correctional services for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy.

Claimant's notice of intention was served on March 30, 2001. From facts set forth in the claim, it is apparent that at that point Claimant had not yet exhausted his administrative remedies (see, Claim, ¶12 and ¶19). Consequently, if a claim had been filed and served at the point in time that the notice of intention was served, it would have been premature and, for that reason, dismissed (Sutter v State of New York, Ct Cl, Feb. 28, 2002 [Claim No. 105399 - Motion No. M-64590 - MacLaw No. 2002-005-507] Corbett J; Delano v State of New York, Ct Cl, June 14, 2001 [Motion No. M-62359 - MacLaw No. 2001-027-571] Waldon, J.).[4] Accordingly, Claimant's motion is denied.

May 6, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1]I consider Claimant's reference to the year 2000 to be a typographical error.
  2. [2]Defendant's third affirmative defense reads as follows: "Claimant has failed to establish personal jurisdiction over the Defendant or subject matter jurisdiction over the Claim because the Claim was served by regular mail only and not by certified mail, return receipt requested or personal service as required by §11(a) of the Court of Claims Act.
  3. [3]This, and other Court of Claims decisions, may be found on the Court of Claims website at
  4. [4]These and other Court of Claims decisions may be found on the Court of Claims website at