5) Filed documents: Claim. This is Defendant's motion, seeking dismissal of
In his claim filed on May 19, 2003, Mr. Young appears to allege that he was
inappropriately placed in a plexiglass covered cell while an inmate in the care
of the Department of Correctional Services.
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 a copy
of the envelope in which the claim was received, which demonstrates that the
claim was served certified mail, but not certified mail, return receipt
requested. Defendant also argues that the claim should be dismissed as it is not
properly verified, does not contain numbered paragraphs, and fails to set forth
the date or location of the accrual of the action.
In his initial response to Defendant's motion, Claimant asserts that he did
serve the Defendant certified mail, return receipt requested, though he argues
that such service is not required by the Court of Claims Act. In his second
response, Claimant admits that Defendant was not served by certified mail,
return receipt requested, but argues that he could not afford to do so at the
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).
Certified mail without return receipt service does not satisfy the requirements
of the Court of Claims Act (Pratt v State of New York, Ct Cl, June 20,
2003, Hard, J., UID # 2003-032-057) and, generally, a claimant is required to
produce the return receipt when the manner of service is challenged (Govan v
State of New York, 301 AD2d 757).
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).
I find that Claimant failed to effect service of the claim upon the Attorney
General because he failed to meet the literal requirements of Court of Claims
Act § 11.
With regard to the other alleged defects, Claimant apparently filed several
documents on May 19, 2003, and it is difficult to discern what portion of these
documents he intended to be the claim. The paragraphs in each document are not
numbered and none of the documents are properly verified or even signed.
Claimant does not adequately set forth where or when his cause of action
accrued. I find that the documents filed by the Claimant are defective and
fail to comply with the pleading requirements of the Court of Claims Act
(Lepkowski v State of New York, 302 AD2d 765).
Additionally, though no formal cross-motion was made in this matter, there is
language in Claimant's second response which could be interpreted to be a
request for permission to file a late claim. Significantly, while upon proper
motion, this Court has discretion to permit late filing, § 10(6) of
the Court of Claims Act requires that "[t]he claim proposed to be filed,
containing all of the information set forth in section eleven of this act, shall
accompany such application." Indeed, the Claimant must attach a copy of the
proposed claim before this Court can exercise its discretion on the application.
Claimant has failed to attach a proposed claim with his submission to the
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. To the extent that Claimant's
response can be deemed to be a cross-motion for permission to file a late claim,
his cross-motion is denied. The Clerk is directed to close the file.