New York State Court of Claims

New York State Court of Claims

LEE v. THE STATE OF NEW YORK, #2003-005-507, Claim No. 103901, Motion No. M-66241


Synopsis


Defendant's motion for dismissal of the claim herein is granted.

Case Information

UID:
2003-005-507
Claimant(s):
EDDIE JAMES LEE, SR., #94-B-0823
Claimant short name:
LEE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103901
Motion number(s):
M-66241
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Eddie James Lee, Sr.,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Heather R. Rubinstein, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 3, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On February 19, 2003, the following papers, numbered 1 to 4, were read on motion by Defendant for dismissal of the claim:

1, 2, 3 Notice of Motion, Affirmation, Affidavit and Exhibits Annexed
  1. Opposing Papers
  1. Filed Papers: Claim
Upon the foregoing papers, the motion is granted.

The underlying claim herein seeks damages for an alleged injury suffered by Claimant at Cayuga Correctional Facility when he allegedly slipped in the shower in E-2 dorm on January 28, 2001.

In lieu of an answer, the Defendant seeks dismissal of the claim on jurisdictional grounds, alleging that a Notice of Intention to file a claim was served upon the Defendant by regular mail on or about January 29, 2001, with a copy of the envelope in which it was received appended (Exhibit A). While the claim itself was served upon the Defendant by certified mail, return receipt requested, on or about November 18, 2002, with a copy of the envelope reflecting such service appended as Exhibit B, Defendant seeks dismissal of the claim on the ground that it was not served with a claim in a manner required by Court of Claims Act §11(a) within 90 days of accrual of the underlying cause of action and therefore it is untimely served and filed.

Defendant appends the affidavit of Carol A. McKay sworn to on December 23, 2002, averring under oath that a thorough search of the Defendant's files reflects that the Notice of Intention was served by regular mail. Since the Notice of Intention to file a claim was not served in a statutorily required manner, said Notice of Intention does not serve to extend the period of time to serve and file a claim. I note that the Claimant has defaulted on this motion, and thus Defendant's assertions are undisputed, and the relief sought is not opposed.

Defendant correctly asserts that improper service of the Notice of Intention to file a claim deprives the court of jurisdiction (see, Bogel v State of New York, 175 AD2d, 493, and Diaz v State of New York, 174 Misc 2d 63). Service of a Notice of Intention to file a claim by regular mail fails to satisfy the service requirements of §11(a) (see, Negron v State of New York, 257 AD2d 652; Martinez v State of New York, 282 AD2d 580). The fact that the claim may have been properly served is not in issue inasmuch as it was untimely, to wit, served more than 90 days after accrual on the cause of action on January 28, 2001.

The motion is granted and the claim is dismissed.


April 3, 2003
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims