Rene Peterson, the Claimant herein, alleges in Claim Number 101851 that
Defendant's agents negligently lost his property while he was incarcerated at
Sing Sing Correctional Facility (hereafter Sing Sing). Trial of the matter was
scheduled to go forward at Sing Sing on October 18, 2002, after the Court had
granted an adjournment from a June 7, 2002 trial date in order to allow Claimant
the opportunity to find proof of service of a Notice of Intention and the Claim
upon the Attorney General.
On October 18, 2002, the Assistant Attorney General renewed her Motion to
Dismiss on jurisdictional grounds, asserting that both the Notice of Intention
Claimant alleged had been served on the Attorney General on April 28, 1997, and
the Claim, were never served on that office. In support of this contention the
Attorney General submitted an affidavit from the records clerk at the office of
the Attorney General indicating that on April 3, 2000 a Notice of Intention
captioned "Rene Peterson v Lakeview SICF - Dentist Falkner, State of New York",
was filed in that office, concerning a Claim accruing on March 10, 2000, and
that this was the only document referable to this Claimant received except for a
copy of a letter from the Chief Clerk of the Court of Claims addressed to
Claimant acknowledging the January 27, 2000 receipt by the Clerk of his Claim,
and assigning the document filed Claim Number 101851. [Defendant's Exhibit
The Court acknowledged receipt of a letter from Claimant to the Court dated
June 12, 2002 enclosing photocopies of the green return receipt card and the
receipt for payment for certified mail, indicating that a document was mailed to
the Attorney General's office on April 24, 1997 and was delivered on April 28,
1997. [Court's Exhibit "1"]. The original of this receipt was also submitted.
[Claimant's Exhibit "1"].
Additionally, Claimant submitted a verification executed by him on April 18,
1997, whose text states in part: "...I have read the foregoing Notice of
Intention to File a Claim against the State of New York and know the contents
thereof....", as well as an Affidavit of Service by Mail from the same date
indicating he had served "...a notice of intention to sue the State of New
York..." upon the Attorney General. [Claimant's Exhibit "2"]. No copy of the
Notice of Intention referred to in the verification or the affidavit was
The file maintained by the Chief Clerk of the Court of Claims contains various
items of correspondence, and copies of Claim Number 101851 filed January 27,
2000. The text of this Claim indicates that a Notice of Intention was served on
the Attorney General within ninety (90) days of the accrual of the claim, which
is noted as having accrued on an unspecified date in January or February, 1997.
The Affidavit of Service submitted with the Claim indicates only that the Claim
was filed with the Court of Claims. There is no indication in the Affidavit of
Service that the Attorney General was ever served with the Claim. No Answer
appears in the Clerk's file.
Accordingly, although the Claim at issue was filed with the Clerk of this Court
on January 27, 2000, it does not appear that a Claim was ever served upon the
Attorney General by any method. As stated, the Attorney General did not serve an
Answer and none appears in the Clerk's file. 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.
The filing and service requirements contained in Court of Claims Act
§§10 and 11 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..
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; cf.
Persaud v Teaneck Nursing Center, Inc., 290 AD2d 350 (1st Dept 2002).
Here, the Claimant confirmed that he served something - perhaps a Notice of
Intention - upon the Attorney General in April, 1997. Nonetheless, no evidence
has been submitted that the Claim itself was ever served. 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 101851 is
hereby dismissed for a lack of jurisdiction.
Let Judgment be entered accordingly.