Perry Wilson, the Claimant herein, alleges in Claim Number 105120 that the
Defendant's agents negligently allowed a dangerous condition to exist on certain
steps and a ramp at Sing Sing Correctional Facility (hereafter Sing Sing)
resulting in injury to Claimant. Trial of the matter was to be held at Sing
Sing on October 18, 2002.
On that date, counsel for the Defendant made an oral motion to dismiss the
Claim based upon its Seventh Affirmative Defense, a failure to timely serve the
Claim upon the Attorney General, in violation of Court of Claims Act
§§10 and 11. In support of this contention, counsel indicated that the
date of accrual noted in the Claim is February 28, 2001, yet the Claim was only
received by the Attorney General's Office on September 25, 2001. The Court
notes that the Clerk's office for the Court of Claims reflects receipt of the
Claim on October 25, 2001, and there does not appear to be an affidavit of
Paragraph 6 of the Claim indicates that a Notice of Intention to file a Claim
was filed in the office of the Attorney General on February 28, 2001.
Additionally, Claimant provided the Court with photocopies of the Notice of
Intention purportedly served on the Attorney General - containing an affidavit
of service saying it was served on both the Attorney General's Office and the
Court of Claims on March 15, 2001 - and return receipt cards addressed to the
Clerk of the Court of Claims, and to the Attorney General, respectively, showing
delivery of the items on April 9, 2001. [Claimant's Exhibit "1"]. The Chief
Clerk's Office of the Court of Claims does not have any record of having
received a Notice of Intention.
The Assistant Attorney General reiterated that her office did not have a record
of having ever received a Notice of Intention, but would check again and report
back to the Court. The Court reserved decision on the Motion to Dismiss and
heard some trial testimony, until additional argument was held concerning a
discovery request. Claimant asked for an adjournment, which was granted, with
the proviso that the Attorney General would conduct a search of the office
records to see whether a Notice of Intention was ever received by that
The Court is in receipt of a letter from the Attorney General dated November 6,
2002, copied to Claimant, indicating that a review of the records confirmed that
there had been no receipt of a Notice of Intention referable to the Claim.
Additionally, the Attorney General indicates they did not receive any
documentary proof from Claimant that a Notice of Intention had been filed with
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. A
Claim must be served and filed within ninety (90) days of its accrual, unless a
Notice of Intention is served upon the Attorney General within that time frame,
giving the Claimant two (2) years from the date of accrual to serve and file the
Based upon the internal inconsistencies with respect to the dates for alleged
service of the Notice of Intention, the fact that although the Affidavit of
Service indicates a copy of the Notice of Intention was sent to the Chief
Clerk's Office, none is present in the Clerk's file, and the fact that the
Attorney General has no copy of said Notice of Intention, it appears that the
Claim in this case was filed well after the date of accrual, and thus this Court
does not have jurisdiction over the Claim.
Defendant properly preserved the issue in its Verified Answer. Accordingly,
the Defendant's Motion to Dismiss is in all respects granted, and Claim Number
105120 is dismissed in its entirety.
Let Judgment be entered accordingly.