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). 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
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
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.