Notice of Motion, Affirmation in Support, with Exhibits 1,2
"Reply to Motion to Dismiss" 3
In his claim, claimant seeks damages based upon an incident which allegedly
occurred on October 26, 2001 at Marcy Correctional Facility, when claimant was
incarcerated at that facility. Claimant alleges that on this date, his legal
papers, books, motions, notes, and personal property were intentionally taken
from him by facility officials. The claim apparently alleges both intentional
and negligent acts committed by facility officers and/or employees.
In its Answer to this claim, defendant acknowledges that a notice of intention
was served on the Attorney General on November 21, 2001. In this motion to
dismiss, however, defendant argues that the claim, which was served upon the
Attorney General on November 8, 2002, was served by regular, first class mail,
and not by certified mail, return receipt requested, as required by statute.
Court of Claims Act, § 11(a) requires that both a notice of intention to
file a claim and a claim must be served upon the Attorney General either
personally or by certified mail, return receipt requested (Hodge v State of
New York, 213 AD2d 766). Furthermore, such provisions are jurisdictional
prerequisites to the institution and maintenance of a claim, and as such must be
strictly construed (Greenspan Bros. v State of New York, 122 AD2d 249).
Service of a claim which is not made in accordance with the provisions of §
11 is insufficient to confer jurisdiction over the State (Hodge v State of
New York, supra).
In this particular case, defendant asserts that the claim was served on the
Attorney General by regular, first class mail, on November 8, 2002. Defendant's
attorney has attached a copy of the envelope in which the claim was mailed (see
Exhibit C to Items 1,2) on which postage in the amount of $.74 is affixed.
There is no additional postage or any other markings on the envelope to indicate
that the claim was served by certified mail, return receipt requested, as
required by statute. The use of ordinary mail to serve a claim upon the
Attorney General is insufficient to acquire jurisdiction (Bogel v State of
New York, 175 AD2d 493). This Court does not have the authority to cure or
overlook defects in the manner of service and filing and therefore this claim
must be dismissed.
In his answering papers, claimant requests that this Court grant him late claim
relief, and he makes reference to Court of Claims Act, § 10(6). Section
10(6), however, requires that any application for permission to serve and file
a late claim "shall be made upon motion returnable at any regular or special
session of the court". Any such motion must therefore be served and filed in
accordance with the Uniform Rules for the Court of Claims, as well as
appropriate provisions of the CPLR, upon notice to the Attorney General. In
this matter, claimant has not requested such relief in the proper manner, which
would afford the State an opportunity to respond. Accordingly, this Court finds
that claimant's request for consideration of late claim relief is not properly
before the Court, and therefore cannot be considered at this time.
Therefore, it is
ORDERED, that Motion No. M-66690 is hereby GRANTED; and it is further
ORDERED, that Claim No. 106882 is hereby DISMISSED.