George Michael Allen, the Claimant herein, alleges in Claim Number 105098 that
Defendant's agents failed to protect him from an assault by fellow inmates 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 March 7,
On that date, the Assistant Attorney General made a motion to dismiss on
jurisdictional grounds, asserting that neither a Notice of Intention or a Claim
had ever been served on the Attorney General as required. In support of this
contention the Attorney General submitted an affidavit from the records clerk at
the Office of the Attorney General indicating that there was no record of the
Attorney General's office having received any documents connected with this
claim except for a copy of a letter from the Court of Claims directed to
Claimant acknowledging receipt of the Claim by the Court, and an Order from the
Court reducing the filing fee. [State's Exhibit "A"].
The copy of the Claim contained in the Court's file includes an affidavit of
service indicating that Claimant had served the Claim upon the Attorney General
by certified mail, return receipt requested. When asked, however, whether he had
ever served the Attorney General's Office with either a Notice of Intention or a
Claim, Claimant stated he had not, nor did he have proof of service in the form
of receipts for certified mail. The Court notes that the Court file contains
only the Claim with the acknowledgment letter attached and the fee reduction
Order. No Answer is in the file.
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,
, 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
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.
Service upon the Attorney General by ordinary mail is generally insufficient to
acquire jurisdiction over the State, unless the State has failed to properly
plead jurisdictional defenses or raise them by motion. Court of Claims Act
§§10 and 11
; Edens v State of New York
, 259 AD2d 729 (2d Dept 1999); Philippe v
State of New York
, 248 AD2d 827 (3d Dept 1998).
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 §
Accordingly, although the Claim at issue was filed with the Clerk of this Court
on October 22, 2001, it does not appear that a claim was ever served upon the
Attorney General by any method. As noted, 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."
, Dunn v State of New York
, Claim No. 98551,
M-62308,62310,CM-62324, September 29, 2000, Corbett, J.
Here, the Claimant has not been able to establish that he served the Claim upon
the Attorney General as required. Accordingly, Claim Number 105098 is hereby
dismissed for a lack of jurisdiction.
Let judgment be entered accordingly.