New York State Court of Claims

New York State Court of Claims

GODFREY v. THE STATE OF NEW YORK, #2004-009-23, Claim No. 108290, Motion No. M-67936


Synopsis


Case Information

UID:
2004-009-23
Claimant(s):
WENDY LEE CAZA GODFREY The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
GODFREY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108290
Motion number(s):
M-67936
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
WENDY LEE CAZA GODFREY, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Gordon J. Cuffy, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
April 12, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this pre-answer motion seeking an order dismissing the claim. Defendant contends that the claim should be dismissed based upon improper and untimely service, that the claim is barred by the statute of limitations, and that the claim fails to state a cause of action.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2

Claimant's Response (Notice of Motion, Motion to Strike Answer) 3,4

In her claim, claimant alleges that from July through September, 2001, while employed at Cayuga Correctional Facility, she was assaulted by another employee of the Department of Correctional Services. She further alleges that from September through November, 2001, her work shift was modified because of her complaints against this employee, and that eventually, her employment was wrongfully terminated in April, 2002. She sets forth allegations of discrimination, sexual harassment, libel, slander, assault, battery, false imprisonment, violation of civil rights, and violations of the Federal and State constitutions. The claim therefore alleges both intentional and negligent torts committed by officers and/or employees of the State.

A claim alleging acts of negligence against the State must be served on the Attorney General and filed with the Clerk of the Court of Claims within 90 days of accrual, unless a notice of intention is served upon the Attorney General within such 90 days (Court of Claims Act, § 10[3]). If a notice of intention is so served upon the Attorney General, the claim must then be served and filed within two years from the date of accrual.

With regard to a claim seeking to recover for personal injuries caused by intentional torts committed by an officer or employee of the State, such claim must also be served upon the Attorney General and filed with the Clerk of the Court of Claims within 90 days of accrual, unless a notice of intention is served upon the Attorney General within such 90 days (Court of Claims Act § 10[3-b]). If a notice of intention is so served upon the Attorney General, a claim alleging an intentional tort must then be served and filed within one year after accrual.

Additionally, Court of Claims Act § 11(a) requires that a claim or a notice of intention must be served upon the Attorney General either personally or by certified mail, return receipt requested.

In this particular matter, defendant acknowledges that a notice of intention to file a claim was received by the Attorney General's office on July 18, 2002. Defendant contends, however, that this notice of intention was served by regular, first class mail, and not by certified mail, return receipt requested, as required by statute.

Subsequently, the claim was served on the Attorney General on September 16, 2003, with such claim being served by certified mail, return receipt requested. Records of this Court establish that this claim was filed with the Clerk of the Court of Claims on September 17, 2003.

With regard to the service of the notice of intention, defendant has attached a copy of the envelope in which it was mailed (see Exhibit B to Items 1,2) which indicates that the notice of intention was mailed by first class mail. There are no markings on the envelope to indicate that this notice of intention was served by certified mail, return receipt requested, as required by § 11(a).

As a result, service of the notice of intention by regular mail did not comply with the requirements of Court of Claims Act § 10(3) and therefore is not valid (LaFrance v State of New York, 147 AD2d 985, lv denied 74 NY2d 604; see also Hodge v State of New York, 158 Misc 2d 438, affd 213 AD2d 766).

The provisions relating to the time and manner of service and filing are jurisdictional prerequisites to the maintenance of a claim, and as such must be strictly construed (Greenspan Bros. v State of New York, 122 AD2d 249). As a result, this Court does not have the authority to cure or overlook defects in the time and/or manner of service and filing, assuming that such defenses are properly raised by the defendant either in its responsive pleading or by a motion to dismiss made prior to service of said responsive pleading, as required by Court of Claims Act § 11(c).

Accordingly, the improper service of the notice of intention herein renders it a nullity, and claimant is therefore not entitled to the extension of time in which to serve and file a claim provided by Court of Claims Act § 10(3) and (3-b). The eventual service and filing of the claim in September, 2003 is therefore well beyond the 90 day time period set forth in § 10(3) and (3-b). Therefore, this claim must be dismissed.

In view of the dismissal of this claim herein based upon jurisdictional grounds, the Court has not considered defendant's alternative requests for dismissal.

Based on the foregoing, it is therefore

ORDERED, that Motion No. M-67936 is hereby GRANTED; and it is further

ORDERED, that Claim No. 108290 is hereby DISMISSED.



April 12, 2004
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims