Corey Vanier, the Claimant herein, alleges in Claim Number 103262 that
Defendant's agents negligently mishandled a basketball injury he suffered while
he was incarcerated at Green Haven Correctional Facility (hereafter Green
Haven). Trial of the matter was scheduled to go forward on August 23,
On that date, counsel for the Defendant made a motion to dismiss the claim
based upon a failure to serve the claim upon the Attorney General's office by
certified mail, return receipt requested. In support of this contention,
Defendant provided an Affidavit from a Catherine Naveed, a clerk in the Claims
Bureau of the New York City Office of the Attorney General of the State of New
York, in which it is indicated that although a document entitled Notice of
Intention was received by the Attorney General's office on November 6, 1998, and
again on July 7, 2000, no Claim was ever
[Defendant's Exhibit "A"]. The first Notice of Intention was served regular
mail. The second was served by certified mail, return receipt requested. No
Answer by the Attorney General was served or filed. This has been found to be
"reflective of the failure to have served the claim." See
, Dunn v
State of New York
, Claim No. 98551, M-62308, M-62310, CM-62324, September
20, 2000; Corbett, Jr., J..
Additionally, Claimant indicated he was not initially aware until he talked to
a fellow inmate that he was required to serve the claim certified mail, return
receipt requested. Based upon that information, he then served the Notice of
Intention via certified mail, return receipt requested on July 7, 2000, as noted
Claimant's Exhibit "4", Affidavit of Service and Claimant's Exhibits
"1" and "5"]. Although the Claim before this court appears to have been filed
with the Clerk of the Court on October 23, 2000, it does not appear that a claim
was ever served upon the Attorney General by any method.
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
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). 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
, 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
, at 377; C.f.,
Persaud v Teaneck Nursing Center, Inc.
, 290 AD2d 350 (1st Dept
Here, the Claimant confirmed that he served a Notice of Intention upon the
Attorney General only by regular mail. Even assuming the most generous date of
accrual of August 4, 2000 - and this would assume application of a "continuous
statute of limitations time frame - service of the additional Notice of
Intention by certified mail, return receipt requested, is of no assistance. The
time within which to serve the claim upon the Attorney General has expired.
, Court of Claims Act §§10 and
The Defendant has raised the jurisdictional issue in a timely motion.
Accordingly, because the Attorney General was not served with a copy of the
claim as required by Court of Claims Act §11(a), Claim Number 103262 is
hereby dismissed for a lack of jurisdiction.
Let Judgment be entered accordingly.