This is claimant's motion to vacate the Court's Order filed July 9, 2003, which
dismissed the claim of Marilyn Diaz. In such claim, Ms. Diaz alleged that
because of defendant's negligence, she slipped and fell on the staircase in the
Herbert H. Lehman College library on April 28, 1999. On March 27, 2003, the
Court sent claimant's counsel a letter directing that counsel advise as to the
status of this case within thirty days of the letter's receipt. Counsel
provided the Court with a May 5, 2003 letter stating that the claim "is still
open and being litigated. It has not settled. Please do not dismiss the case."
The Court then sent the parties a May 9, 2003 letter scheduling a conference for
June 25, 2003 at 10:00 a.m. Counsel for defendant appeared, but no appearance
was made on behalf of Ms. Diaz. The claim was subsequently dismissed pursuant
to §19.3 of the Court of Claims Act in an Order filed on July 9, 2003.
More than seven months later, on February 23, 2004, claimant filed the instant
motion, stating that "[d]ue to law office failure, [the June 25, 2003
conference] was not entered into the office diary and plaintiff's office did not
appear. . ." See ¶10 of the February 20, 2004 affirmation of Bonnie
Defendant opposes this motion, among other things, on the ground that the
Office of the Attorney General was not served with a notice of intention in this
case and thus this Court lacks jurisdiction over the
Section 10.3 of the Court of Claims
Act provides that a claim must be served on the Attorney General within ninety
days of accrual of the claim unless a notice of intention is served within such
time, after which a claim must then be served within two years. Claimant's
papers contain a "notice of claim" (which term claimant apparently uses instead
of a notice of intention), with certified mail receipts indicating service on
the Comptroller of the City of New York on June 2, 1999 and Lehman College on
June 1, 1999, but no such receipt with respect to the Attorney General. In her
reply papers, claimant states that "[t]he Notice of
and Verified Claim are attached . . .
All have been served properly upon the respective parties." However, she does
not provide any documentation as to service on the Attorney General, or for that
matter, dispute that the Attorney General was not served with her notice of
"It is well established that compliance with sections 10 and 11 of the Court of
Claims Act pertaining to the timeliness of filing and service requirements
respecting claims and notices of intention to file claims constitutes a
jurisdictional prerequisite to the institution and maintenance of a claim
against the State, and accordingly, must be strictly construed . . ." Byrne
v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984),
lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted). See
also Mallory v State of New York, 196 AD2d 925, 601 NYS2d 972 (3d Dept
1993). In short, this Court lacks jurisdiction over claim no. 102545.
For the foregoing reasons, having reviewed the
, IT IS ORDERED that motion no.
M-68067 be denied.