Mark Rusch, the Claimant herein, alleges in Claim Number 103297 that
Defendant's agents failed to give him adequate medical care while he was
incarcerated at Green Haven Correctional Facility (hereafter Green Haven).
Trial of the matter was scheduled to go forward on August 23, 2002.
Prior to that date, however, Defendant had made a written motion to dismiss the
claim based upon this Court's lack of jurisdiction over the claim as well as its
failure to state a cause of action. That motion was renewed orally, and
Defendant also sought dismissal on the additional ground that claimant has
another claim pending concerning the same matter. Although it is somewhat
difficult to read, the present claim asserts that on or about March 10, 1999
Claimant returned from St. Agnes Hospital and did not receive proper care for a
swelling in his right arm, and suffered some additional physical harm as a
With respect to the jurisdictional ground for dismissal, Counsel for Defendant
asserted that the Claim had been served upon the Office of the Attorney General
by regular mail, rather than by certified mail, return receipt requested. This
defense was raised in Defendant's Answer. In support of this contention,
Defendant furnished a copy of the envelope in which the claim was sent,
indicating only postage in the amount of only $.77 had been paid: far less than
the fee required for certified mail. Additionally, after some confusion,
Claimant was unable to show that this Claim was served certified mail, return
There is no affidavit of
service in the file indicating how and when the claim was served.
The filing and service requirements contained in §§10 and 11 Court of
Claims Act are jurisdictional in nature and must be strictly construed.
Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 (1989);
See, also, Welch v State of New York, 286 AD2d 496, 729
NYS2d 527, 529 (2d Dept 2001); Conner v State of New York, 268 AD2d 706,
707 (3d Dept 2000). Indeed, the statute provides in pertinent part "...[n]o
judgment shall be granted in favor of any claimant unless such claimant shall
have complied with the provisions of this section applicable to his claim...."
Court of Claims Act §10.
Court of Claims Act §11(a) provides that "...a copy [of the claim] shall
be served personally or by certified mail, return receipt requested, upon the
attorney general..." within the time prescribed in Court of Claims Act §10;
and service is complete when it is received in the Attorney General's office.
Court of Claims Act §11(a)(ii). Service upon the Attorney General by
ordinary mail is generally insufficient to acquire jurisdiction over the State,
unless the State has failed to properly plead jurisdictional defenses or raise
them by motion. §11(c) Court of Claims Act; Edens v State of New
York, 259 AD2d 729 (2d Dept 1999); Philippe v State of New York, 248
AD2d 827 (3d Dept 1998).
The Claimant has the burden of establishing proper service [Boudreau v
Ivanov, 154 AD2d 638, 639 (2d Dept 1989)] by a preponderance of the
evidence. See, Maldonado v County of Suffolk, 229 AD2d 376 (2d
Dept 1996). Regulations require that proof of service be filed with the Chief
Clerk within ten (10) days of service on the defendant. 22 NYCRR §
206.5(a). Even if an affidavit of service has not been filed with the Chief
Clerk's office, some form of proof of service would be necessary in order to
make application for a default judgment [§ 3215(f) Civil Practice Law and
Rules] for example; or to oppose a party's motion to dismiss based upon lack of
service. §3211(e) Civil Practice Law and Rules. Indeed, in the standard
civil case, where independent process servers attest to the facts of service, an
affidavit of service constitutes prima facie evidence of proper
service in the absence of a sworn denial that the party to be served was not
served. Maldonado v County of Suffolk, supra, at 377; C.f.,
Persaud v Teaneck Nursing Center, Inc., 290 AD2d 350 (1st Dept
Here, the Claimant has not been able to establish that he served the Claim upon
the Attorney General as required, and the Defendant has raised the
jurisdictional issue in its Answer and in a timely motion. Thus Claimant has
failed to establish, by a fair preponderance of the credible evidence, that the
Attorney General was served with a copy of the claim as required by Court of
Claims Act §11(a), therefore this Court has no jurisdiction over the claim.
The Court does not consider the other aspects of Defendant's motion since it has
determined the motion on this jurisdictional ground. Accordingly, Claim Number
103297 is hereby dismissed in its entirety.
Let judgment be entered accordingly.