New York State Court of Claims

New York State Court of Claims

ROSARIO v. THE STATE OF NEW YORK, #2002-015-275, Claim No. 105771, Motion No. M-65104


Notice of intention to file a claim served on Attorney General lacks specificity and was not verified thus it failed to satisfy statutory requirements conferring jurisdiction and failed to trigger additional time period for service of claim pursuant to Court of Claims Act § 10 (3). Moreover, claimant's failure to serve claim personally or by certified mail, return receipt requested deprived Court of jurisdiction to adjudicate claim.

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:
Julio Rosario, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 24, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's pre-answer motion to dismiss the claim for lack of jurisdiction is granted. The claim filed March 18, 2002 seeks to recover $100,000.00 in damages for personal injuries sustained in an alleged attack upon the claimant by an unidentified inmate at approximately 9:00 p.m. on November 4, 2001 near the counselor's building at an unspecified correctional facility.

The defendant premised the instant dismissal motion on a number of alleged jurisdictional defects, some of which are lacking in merit and can be disposed of summarily. These include an allegation that the claim was not properly filed with the Court as required by 22 NYCRR § 206.5 and that the Court is therefore without jurisdiction. The defendant's notice of motion and counsel's supporting affidavit refer to a claim number which would not have been issued by the Clerk of the Court until the claim was filed with the Court. The defendant's request to dismiss the claim in this regard is therefore without merit. Similarly, the defendant has alleged that the notice of intention to file the claim was served by certified mail but without return receipt and therefore did not satisfy the jurisdictional imperative of Court of Claims Act § 11 (a). That section requires either personal service or service by certified mail, return receipt requested upon the Attorney General of either a claim or notice of intention to file a claim. Exhibit D attached to the defendant's motion papers is a photocopy of the front and reverse sides of the envelope purportedly used by claimant to serve his notice of intention to file a claim. Contrary to defense counsel's allegation, the reverse side of the exhibit appears to the Court to contain a portion of the return receipt attachment bearing # 7001 0320 0002 2173 4486 and the front side bears a postage meter stamp dated January 14, 2002 evidencing postage paid in the amount of $3.94 which at the time of mailing was the amount required by the U.S. Postal Service for certified mail, return receipt requested. While the defendant's own submission was enough to prove the claimant's compliance with Court of Claims Act § 11 (a) and to defeat counsel's request to dismiss the claim on that basis, here claimant submitted a photocopy of the return receipt itself bearing the same identification number as that shown on defendant's Exhibit D. The defendant's motion to dismiss on the basis of improper service of the notice of intention is, therefore, denied.

These obviously groundless assertions which a careful reading of the documents would have disclosed are noted by the Court because such carelessness on the part of attorneys forces the court to use its energy and resources to address issues totally lacking in merit thereby delaying the consideration of meritorious claims and defenses. More care must be taken by counsel to avoid such wasting of judicial time and energy in the future.

In addition to the above noted assertions there are legitimate jurisdictional issues raised by defense counsel which must be addressed. These include obvious deficiencies in the notice of intention and claimant's failure to properly serve the claim. The Court's attention is first turned to the notice of intention.

Although it has not been necessary to file a notice of intention in order to pursue an action against the State for money damages in the Court of Claims since August 2, 1995 (see, subd. a, L 1995, c 466 § 2) when one chooses to serve a notice of intention upon the Attorney General he or she must do so in conformity with the requirements of section 11 of the Court of Claims Act. On this motion the Court has already determined that the claimant properly served his notice of intention by a method of service prescribed by section 11 (a). Section 11 further prescribes, however, the following requirements applicable to a notice of intention. Specifically, section 11 (b) of the Court of Claims Act provides:
The claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed. A claim for the appropriation by the state of lands, or any right, title or interest in or to lands shall include an inventory or itemized statement of fixtures, if any, for which compensation is claimed. The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and sum claimed need not be stated. The claim and notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court.
On this motion defense counsel's assertion that claimant's notice of intention was not verified stands unrefuted and the copy of the notice of intention attached to the motion as Exhibit C supports that allegation. Even if the Court were permitted to consider claimant's unsworn statement purported to be an affirmation which he submitted in opposition to the motion (see, CPLR 2106; Doumanis v Conzo, 265 AD2d 296) that statement alleges only that the claim, not the notice of intention, was verified.

The failure of a claimant to verify the notice of intention as required by the final sentence of subdivision (b) of Court of Claims Act § 11 properly raised for judicial determination upon this pre-answer motion renders the notice ineffective in invoking the Court's jurisdiction (see, Martin v State of New York, 185 Misc 2d 799; cf., Vogel v State of New York, 187 Misc 2d 186).

Moreover, the notice of intention is lacking in the type of factual specificity required pursuant to Court of Claims Act § 11 (b). In relevant part the notice of intention served on the Attorney General on January 17, 2001 (defendant's Exhibit C) merely states "On November 4, 2001 I was assaulted with razor; which resulted in a four inch long cut." The notice does not state the time when (except as to the date) and place where the attack occurred, who the attacker was purported to be, or the nature of the State's actions or inactions allegedly giving rise to liability.

The applicable law was recently restated by Judge Patti of this Court in Arquette v State of New York, 190 Misc 2d 676 at 678-679 where he observed:
The purpose of a notice of intention is 'to provide the State with fair and timely notice by bringing the general nature of the claim to its attention' (Schwartzberg v State of New York, 121 Misc 2d 1095, 1099-1100, affd 98 AD2d 902; see also, Schmidt v State of New York, 279 AD2d 62; Williams v State of New York, 77 Misc 2d 396). Because a notice of intention is not a pleading, it is not to be scrutinized under the standards applicable to pleadings (Murray v State of New York, 202 App Div 597; Epps v State of New York, 199 AD2d 914), but it must contain some meaningful reference to the defect or wrongful actions by State officials that will allegedly give rise to liability (Grumet v State of New York, 256 AD2d 441), so that the State will have an opportunity to investigate the facts and determine its potential liability (Heisler v State of New York, 78 AD2d 767). Information about the location of an incident is sufficient if it makes such investigation possible (Rhodes v State of New York, 245 AD2d 791; Grande v State of New York, 160 Misc 2d 383).
Viewed in this context the instant notice of intention fails to satisfy the requirements of section 11 of the Court of Claims Act as they relate to a notice of intention since it does not even hint at the factual underpinning of the State's alleged negligence (see, Sega v State of New York, 246 AD2d 753).

Since the notice of intention received by the Attorney General on January 22, 2002 was defective claimant cannot claim the statutory benefit of additional time to serve and file the claim (see, Court of Claims Act § 10 (3)). The filing of the claim on March 18, 2002 and its service upon the Attorney General on March 19, 2002 (see, defendant's Exhibit A) were therefore well beyond the 90 day period allowed for service and filing of a claim pursuant to Court of Claims Act § 10 (3) when measured from the stated accrual date of November 4, 2001.

Additionally, it appears from defense counsel's affirmation and from the photocopy of the envelope (defendant's Exhibit B) used by claimant that the properly verified claim was served upon the Attorney-General by regular mail. It is settled that "[o]rdinary mail is not one of the methods of service authorized by Court of Claims Act § 11 (a)" (Turley v State of New York, 279 AD2d 819) and "the use of ordinary mail to serve the claim upon the Attorney General is insufficient to acquire jurisdiction over the State" (Philippe v State of New York, 248 AD2d 827). Defendant having established that service of the claim was not accomplished in accordance with the requirements of Court of Claims Act § 11 (a), the Court lacks jurisdiction and the claim must be dismissed (Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687).

Accordingly, the instant claim is dismissed for the reasons set forth herein.

July 24, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated April 22, 2002;
  2. Affirmation of G. Lawrence Dillon dated April 22, 2002, with exhibits;
  3. Answer to pre-answer motion to dismiss dated May 6, 2002;
  4. "Affirmation" of Julio Rosario dated May 6, 2002 with exhibit.