New York State Court of Claims

New York State Court of Claims

HERCULES v. THE STATE OF NEW YORK, #2003-009-51, Claim No. 107956, Motion No. M-67148


Synopsis


Defendant's motion to dismiss the claim based upon a lack of jurisdiction was granted, in that claimant had failed to verify his notice of intention.

Case Information

UID:
2003-009-51
Claimant(s):
MARCEL HERCULES The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
HERCULES
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107956
Motion number(s):
M-67148
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
MARCEL HERCULES, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
October 22, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this pre-answer motion seeking an order dismissing the claim based upon a lack of jurisdiction.

The following papers were considered by the Court in connection with this motion:
Pre-Answer Notice of Motion, Affirmation in Support, with Exhibits 1,2


Filed Papers: Claim

Defendant seeks dismissal of this claim, contending that claimant failed to verify a notice of intention to file a claim, thereby rendering it a nullity, and leading to the untimely service of a verified claim which was subsequently served upon the Attorney General. Claimant has not submitted any response to this motion, and therefore the Court will accept as fact the relevant dates relied upon by defendant in its moving papers.

As set forth in his moving papers, defendant's attorney affirms that an undated, unverified notice of intention to file a claim was received by the Attorney General on February 25, 2002. This notice of intention was served by certified mail, return receipt requested as required by Court of Claims Act § 11(a). The notice of intention makes reference to a potential claim allegedly accruing on January 2, 2002, when claimant was injured while attempting to take a shower. A verified claim was then served upon the Attorney General by certified mail, return receipt requested, on April 21, 2003.

For claims based upon allegations of negligence against the State, Court of Claims Act § 10(3) requires that a claim be filed and served upon the Attorney General within 90 days after the accrual of such claim, unless a notice of intention to file a claim is served upon the Attorney General within such time period. If a notice of intention is so served, claimant must then file and serve the claim within two years after accrual.

If a claimant elects to serve a notice of intention upon the Attorney General in order to obtain the additional time to serve and file a claim, such notice of intention must conform with the requirements of § 11 of the Court of Claims Act. Court of Claims Act § 11(b) requires, inter alia, that a claim and notice of intention be verified in the same manner as a complaint in an action in supreme court. The requirement that a notice of intention to file a claim be verified has been determined to be a jurisdictional prerequisite to the commencement of an action in this Court, the absence of which constitutes a fatal defect (Martin v State of New York, 185 Misc 2d 799; Postell v State of New York, Ct Cl, May 21, 2002, Collins, J., Claim No. 105264, Motion Nos. M-64519, M-64674, M-64792 [UID No. 2002-015-254]). As a result, an unverified notice of intention is considered a nullity and does not extend the time for claimant to serve and file a claim as permitted by Court of Claims Act § 10(3). Therefore, defendant further contends that the claim in this matter, although it was properly verified, was not timely served upon the Attorney General.

In this matter, since the notice of intention received by the Attorney General on February 25, 2002 was jurisdictionally defective, claimant is not entitled to the statutory benefit of additional time in which to serve and file his claim pursuant to Court of Claims Act § 10(3). Therefore, the service of the claim upon the Attorney General on April 21, 2003 was beyond the 90 day period allowed for service of a claim pursuant to § 10(3), when measured from the accrual date of January 2, 2002.

The service and filing requirements of the Court of Claims Act are jurisdictional prerequisites to the institution and maintenance of a claim against the State and therefore they must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721; Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607). As a result, this Court does not have the authority to cure or overlook defects in the time and/or manner of service and filing.

The Court notes that any defense premised upon untimely service and/or filing of a claim must be asserted with particularity in either the answer or a pre-answer motion to dismiss (Court of Claims Act § 11[c]). In this matter, defendant has specifically moved to dismiss the claim prior to the service of its responsive pleading, thereby raising the issue of untimeliness with the requisite particularity.

Based on the foregoing, this claim must be dismissed.

Accordingly, it is

ORDERED, that Motion No. M-67148 is hereby GRANTED; and it is further

ORDERED, that Claim No. 107956 is hereby DISMISSED.


October 22, 2003
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims