4,5 Filed Papers: Claim, Answer
After carefully considering the papers submitted and the applicable law the
motion is disposed of as follows:
Claimant alleges in Claim Number 103910 that on or about February 20, 2000
Defendant's agents used excessive force during a pat and frisk procedure at
Green Haven Correctional Facility (hereafter Green Haven), resulting in his
physical and emotional injury.
On April 11, 2000 a Notice of Intention to File Claim relevant to this incident
was served upon the defendant certified mail, return receipt requested.
[Affirmation of Jeane L. Strickland Smith, dated October 29, 2002, Exhibit "1"].
On or about March 1, 2001, the Verified Claim was served upon the Attorney
General's Office by regular mail. [Id, Exhibit "2"]. Claimant concedes
that the claim was served by regular - not certified - mail. [Affidavit in
Response of Michael L. Eldridge, dated November 4, 2002, ¶8].
Defendant moves to dismiss the claim based upon its sixth Defense, a failure to
serve the claim upon the Attorney General's office by certified mail, return
receipt requested. Claimant essentially argues that his service of the Notice of
Intention within ninety (90) days of accrual of the claim, by certified mail,
return receipt requested, was enough to give this Court jurisdiction over the
Claim, despite his failure to serve the Claim either personally, or by certified
mail, return receipt requested. Claimant has stated the law incorrectly.
The filing and service requirements contained in §§10 and 11 of the
Court of Claims Act 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)(i) 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. §11(c)
Court of Claims Act; 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 §
Here, the Claimant has not established that he served the Claim upon the
Attorney General as required, and the Defendant has raised the jurisdictional
issue in a timely motion. The timely and proper
of the Notice of Intention in this
case only tolled the limitations period to allow for service of the underlying
claim within one year of its accrual, rather than ninety (90) days. See
Court of Claims Act §10 3-b. It did not remove, however, the additional
statutory requirement that the claim be served either personally, or by
certified mail, return receipt requested. Assuming an accrual date of February
20, 2000 the Claimant had until February 20, 2001 to properly serve the claim on
the Attorney General. Since he has not done so, Claimant has failed to
establish, by a fair preponderance of the credible evidence, that the Attorney
General was served with a copy of the claim as required by Court of Claims Act
§11(a) . Accordingly, Claim Number 103910 is hereby dismissed for a lack of