Notice of Motion, Affirmation 1,2
Filed Papers: Claim.
Pursuant to the Court of Claims Act, claims based upon negligence unintentional
torts (§ 10) or intentional torts (§ 10[3-b]) must be served
upon the Attorney General and filed with the Clerk of the Court of Claims within
90 days from the date of accrual, unless within such time period a written
notice of intention to file a claim is served upon the Attorney General. If a
notice of intention is so served, a claim for negligence or unintentional torts
must then be filed and served within two years after accrual, and a claim
alleging an intentional tort must be filed and served within one year after
Additionally, Court of Claims Act § 11(a) requires that a claim must be
served upon the Attorney General either personally or by certified mail, return
These provisions of the Court of Claims Act 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).
In this particular matter, defendant contends that claimant failed to timely
and properly serve his claim. In his filed claim, claimant alleges that his
cause of action accrued on April 21, 2004. In his moving papers, defendant's
attorney contends that the claim was served upon the Attorney General on August
24, 2004 by regular, first class mail. It is therefore defendant's position
that service of the claim was untimely, in that it occurred more than 90 days
after accrual, and that service was not made in accordance with one of the
permissible methods of service set forth in § 11(a). In support of his
contention, defendant's attorney states that a copy of the claim which was
served upon the Attorney General, and the envelope in which it was mailed, have
been attached as exhibits to this motion. No such exhibits, however, were
submitted with this motion.
Although he did not submit any papers in opposition to this motion, claimant,
to the contrary, did attach an affidavit of service with his filed claim stating
that the claim was mailed by certified mail, return receipt requested, to the
Attorney General on June 22, 2004.
If true, such service would have been both timely and in compliance with §
In considering these directly opposing statements, and without any supporting
documentation from either party, this Court is not in a position to conclusively
determine whether claimant failed to timely or properly serve his claim.
Defendant's motion to dismiss the claim on these grounds must therefore be
Defendant, however, has also moved to dismiss this claim based upon the alleged
failure of claimant to state a cause of action in his claim.
In his claim, claimant alleges that "on 9/14/03, 9/15/03, 9/16/03, 4/21/04,
4/22/04 went to sick call for not being able to go to the bathroom pain, major
weight loss and bleeding from my rectum."
Recently, the Court of Appeals stated that § 11(b) of the Court of Claims
Act places five specific substantive conditions upon the State's waiver of
sovereign immunity, and that a claim must specify (1) the nature of the claim;
(2) the time when it arose; (3) the place where it arose; (4) the items of
damage or injuries alleged to have been sustained; and (5) the total sum claimed
(Lepkowski v State of New York, 1 NY3d 201). These requirements must be
strictly construed (see Lichtenstein v State of New York, 93 NY2d 911;
Dreger v New York State Thruway Auth., 81 NY2d 721), and a claim which
does not satisfy these conditions is jurisdictionally defective and susceptible
to dismissal (Lepkowski v State of New York, supra).
In this matter, claimant has merely alleged that he made numerous trips to sick
call complaining of various ailments. Such allegations are insufficient for
this Court to discern any potential basis of liability against the State.
Additionally, such allegations are not sufficiently definite to provide the
State with any opportunity to properly investigate the claim and determine its
potential liability (see Heisler v State of New York, 78 AD2d 767). For
these reasons, the Court must find that the claimant has failed to comply with
the statutory requirements of § 11(b), and this claim must therefore be
Therefore, it is
ORDERED, that Motion No. M-69128 is hereby GRANTED; and it is further
ORDERED, that Claim No. 109533 is hereby DISMISSED.