New York State Court of Claims

New York State Court of Claims

CONTRERAS v. THE STATE OF NEW YORK, #2003-031-057, Claim No. 107415, Motion Nos. M-66688, M-66689


Claim served on Defendant by regular mail and more than 90 days after accrual of action. Defendant's motion for dismissal of the claim granted. Claimant's motion for assignment of counsel denied as moot.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-66688, M-66689
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: HEATHER R. RUBINSTEINAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 5, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

The following papers, numbered 1 to 5, were read on motion by Claimant for assignment of counsel and motion by Defendant for dismissal of the claim:
1) Defendant's Notice of Motion (M-66689), filed January 6, 2003;
  1. Affirmation of Heather R. Rubinstein, Esq., dated January 3, 2003, with attached exhibit;
  2. Claimant's Notice of Motion (M-66688), filed March 3, 2003;
4) Claimant's Affidavit, sworn to November 12, 2002, with attached exhibit;
5) Order of the Honorable Richard E. Sise, filed March 14, 2003;

Upon the foregoing papers, Defendant's motion is granted. Claimant's motion is denied as moot. Claimant has moved for the assignment of counsel to represent him in this matter. Defendant has filed a motion seeking dismissal of the claim.

In his claim filed on March 3, 2003, Mr. Contreras alleges that, on February 27, 2002, he was injured in the "Small Appliances Repair Shop" at Five Points Correctional Facility. Claimant injured the tip of the fourth finger of his left hand while working on a vacuum machine. He alleges that he was not adequately supervised or trained to perform such work. Claimant seeks to recover the sum of $20,000.00 for the injuries he allegedly received.

Defendant seeks dismissal of the claim based upon Claimant's failure to either serve the claim upon the Attorney General within 90 days of its accrual, or to serve the claim by certified mail, return receipt requested, as required by Court of Claims Act §§ 10(3) and 11(a). Defendant's submission indicates that the claim was served upon the Attorney General's office by regular mail on November 27, 2002, exactly 9 months after accrual.

Claimant, while submitting his own motion for appointment of counsel, has not responded to the Defendant's motion and, therefore, Defendant's assertions are undisputed.

Pursuant to Court of Claims Act §10(3), a claim based upon personal injury resulting from the negligence of an agent of the State, such as is alleged here, must be filed within ninety days unless Claimant has served a notice of intention to file a claim. On this issue, I am unable to determine definitively if Claimant is in compliance with the statute. Despite Claimant's failure to address Defendant's motion, his claim alleges that he served a notice of intention to file a claim on April 2, 2002. This was within the 90 day period provided by the statute. Defendant's motion papers are silent with regard to whether a notice of intention to file a claim was served or, if it was, how it was served. For this reason, I decline to dismiss the claim on this basis.

However, Court of Claims Act § 11(a) provides, in relevant part, that a copy of the claim at issue "shall be served personally or by certified mail, return receipt requested, upon the attorney general." The requirements set forth in Court of Claims Act § 11 are jurisdictional in nature and, as such, must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). The Court is not free to disregard this requirement. "[D]iscretion, equity, or a harsh result may not temper application of a rule of law" ( Martin v State of New York, 185 Misc 2d 799, 804).

Defendant has adequately demonstrated that service upon the Attorney General was effected by regular mail, not certified mail return receipt requested. Claimant has, therefore, failed to meet the literal requirements of Court of Claims Act § 11, and the claim must be dismissed. It is worth noting, however, that if Claimant did properly and timely serve a notice of intention to file a claim, he may yet commence a timely action, as the two year period within which Claimant may file a claim against the State will not expire until February 27, 2004.

Accordingly, for the reasons stated above, it is hereby

ORDERED, that Defendant's motion for dismissal of the claim is granted and the claim is dismissed in its entirety. Claimant's motion for assignment of counsel is denied as moot. The Clerk is directed to close the file.

August 5, 2003
Rochester, New York

Judge of the Court of Claims