5,6 Filed papers: Claim, Answer
After carefully considering the papers submitted and the applicable law the
motion is disposed of as follows:
James Hill, the Claimant herein, alleges in Claim Number 104661 that
Defendant's agents negligently caused him physical injury by allowing a known
dangerous condition to exist while he was incarcerated at Green Haven
Correctional Facility (hereafter Green Haven). According to the Claim, the date
of accrual was August 5, 1999, when rotting wooden bleachers Claimant was
sitting on in a recreation area collapsed, causing him injury.
Defendant notes that a Notice of Intention was served on the Attorney General
by certified mail, return receipt requested, on October 21, 1999. [Affirmation
of Dewey Lee dated September 25, 2003, ¶3; Exhibit 1]. The Claim itself
was served by regular mail upon the Attorney General on July 27, 2001.
[Ibid Exhibit 2]. An affidavit of service filed with the claim, as well
as Counsel for Claimant's Affirmation in Opposition confirm that service of the
Claim upon the Attorney General was by regular mail.
Defendant moves to dismiss the Claim based upon its third defense, a lack of
jurisdiction based upon Claimant's failure to serve the claim upon the Attorney
General as required. Court of Claims Act §11.
In Counsel's Affirmation in Opposition, he argues that the statute requires
that service by certified mail, return receipt requested upon the Attorney
General of either a Notice of Intention or the Claim suffices to afford
this Court jurisdiction over the Claim. Consequently, he avers, the timely and
proper service of the Notice of Intention gives the Court jurisdiction, even
though the Claim was served improperly.
This is a misreading of the applicable law and the cases decided
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 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) 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. Court of Claims Act §11(a)(i). 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 §11(c); 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, although the Claimant did serve a Notice of
upon the Attorney General by the
proper means, the Claim was not served as required. Court of Claims Act
§11(a). The Defendant has raised the jurisdictional issue both in its
Answer and in a timely motion. Accordingly, Motion Number M-67458 is in all
respects granted and Claim Number 104661 is hereby dismissed for a lack of