7) Claimant's unsworn "Declaration in Opposition of Defendant's Cross Motion
and Request for Sanctions," filed August 1, 2003. Upon the foregoing papers,
Defendant's motion is granted. Claimant's motion is denied as moot.
Claimant has moved to compel Defendant to respond to his discovery demands in
this matter. Defendant has filed a cross-motion, seeking dismissal of the
In his claim, filed on October 25, 2002, Mr. Higgins alleges that on September
23, 2002, while incarcerated at Auburn Correctional Facility, he was assaulted
by corrections officers employed by Defendant.
Defendant seeks dismissal of the claim based upon Claimant's failure to serve
the claim upon the Attorney General by certified mail, return receipt requested
as required by Court of Claims Act § 11(a). Defendant has submitted the
affidavit of Senior Clerk Carol McKay, which indicates that Claimant has failed
to serve the claim upon the Attorney General.
Claimant, in opposing Defendant's cross-motion, asserts that he did serve the
Defendant "first class mail, certified mail" (Claimant's Reply Affidavit,
paragraph 2a). Claimant does not allege that he served the claim certified
mail, return receipt requested. This, alone, would be cause for dismissal of
the claim (Pratt v State of New York, Ct Cl, June 20, 2003 [Claim No.
107420], Hard, J., UID # 2003-032-057). Claimant has also failed to submit
adequate proof, such as a copy of the return receipt, or his mailing
disbursement form, to demonstrate that Defendant was properly served (Govan v
State of New York, 301 AD2d 757). Self serving statements that the claim
was properly served are insufficient to defeat Defendant's motion to dismiss
(Washington v State of New York, Ct Cl, December 2, 2002 [Claim No.
105145], Ruderman, J., UID #2002-010-054).
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).
Claimant has failed to meet the literal requirements of Court of Claims Act
§ 11. Claimant failed to effect service of the claim upon the Attorney
General, and the claim must, therefore, be dismissed.
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 to compel
discovery is denied as moot. The Clerk is directed to close the file.