New York State Court of Claims

New York State Court of Claims

VANIER v. THE STATE OF NEW YORK, #2002-030-075, Claim No. 103262


Claim alleging failure to provide adequate medical care at Green Haven Correctional Facility after basketball injury dismissed. No Answer ever filed; timely motion by Defendant. Claimant failed to establish that claim was served upon Attorney General's office by certified mail, return receipt requested, or by any other method

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:
Third-party defendant's attorney:

Signature date:
September 6, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

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, 2002.

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 served.[1]
[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 above. [
See, 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, 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). 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 2002).
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 treatment"[2]
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. See, generally, Court of Claims Act §§10 and 11.
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.

September 6, 2002
White Plains, New York

Judge of the Court of Claims

[1] The Court notes that the affidavit also indicates receipt of an additional Notice of Intention on November 5, 1998, however that Notice appears to refer to a claim filed by this Claimant's brother, Cornel, and is not relevant to this proceeding.
[2] See, generally, Mitchell v State of New York, Claim No. 103000, M-62613(Sise, J., January 4, 2001).