New York State Court of Claims

New York State Court of Claims

WILSON v. THE STATE OF NEW YORK, #2002-030-086, Claim No. 105120


Pro Se inmate claim dismissed. Court does not have jurisdiction. No Notice of Intention served on Attorney General

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:
December 18, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

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 service.

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 office.

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 that office.

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 Claim.

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.

December 18, 2002
White Plains, New York

Judge of the Court of Claims