New York State Court of Claims

New York State Court of Claims

LOPEZ v. THE STATE OF NEW YORK, #2003-031-077, Claim No. 107438, Motion No. M-66635


Claim served by regular mail failed to comply with Court of Claims Act § 11(a). Claim dismissed.

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):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: TIMOTHY P. MULVEY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 17, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 5, were read on motion by Defendant to dismiss the claim for improper service:
  1. Notice of Motion, filed April 3, 2003;
2) Affirmation of Timothy P. Mulvey, Esq., dated March 31, 2003, with attached exhibits;
3) Affidavit of Angel Lopez, sworn to April 11, 2003, with attached exhibits;
4) Reply Affirmation of Timothy P. Mulvey, dated April 29, 2003;
5) Claim, filed March 6, 2003. Claimant commenced this action relating to injuries he sustained when he slipped and fell on ice at Five Points Correctional Facility on December 29, 2002. Claimant alleges that Defendant negligently failed to keep the walkway on which he slipped free from snow and ice. Both parties agree that Claimant served a notice of intention to file a claim by certified mail, return receipt requested, upon Defendant on January 16, 2003. Claimant also served Defendant with the claim on February 24, 2003. However, as the Affidavit of Assistant Attorney General Timothy P. Mulvey sets forth, the claim was served upon the Attorney General's Office by regular mail. Defendant, therefore, brings this motion seeking dismissal of the claim based upon Claimant's failure to serve the claim by certified mail, return receipt requested, as required by Court of Claims Act § 11(a). Defendant has included, in exhibit B of its moving papers, copies of the claim and the envelope in which it was served. The cancelled stamps on the envelope demonstrate that the claim was sent by first class mail and not by certified mail, return receipt requested.

Claimant responded to Defendant's motion by submitting copies of a certified receipt showing service upon the Attorney General's office on January 16, 2003. However, this receipt corresponds with Claimant's service of the notice of intention to file a claim and not his service of the claim. Indeed, the date of the certified service, January 16, 2003, predates the claim, which was sworn to on February 19, 2003 and filed on March 6, 2003, and therefore could not relate to service of the claim upon Defendant.

Court of Claims Act § 11(a) provides, in relevant part, that a copy of the claim "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).

Claimant has failed to meet the literal requirements of Court of Claims Act § 11. Service of the claim upon the Attorney General by first class mail was improper (see Dreger v New York State Thruway Authority, 81 NY2d 721; Negron v State of New York, 257 AD2d 652; Philippe v State of New York, 248 AD2d 827). 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 December 29, 2004.

Based upon the foregoing it is:

ORDERED, that Defendant's motion for dismissal of the claim is granted. The Clerk is directed to close the file.

October 17, 2003
Rochester, New York

Judge of the Court of Claims