New York State Court of Claims

New York State Court of Claims

STEED v. THE STATE OF NEW YORK, #2004-019-543, Claim No. 101592, Motion No. M-68111


Synopsis


Case Information

UID:
2004-019-543
Claimant(s):
THOMAS R. STEED, #93-A-8541
Claimant short name:
STEED
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101592
Motion number(s):
M-68111
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
THOMAS R. STEED, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
May 11, 2004
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

By an Order to Show Cause filed in the Office of the Clerk of the Court on March 8, 2004, this court, sua sponte, directed both parties to submit written statements and any relevant proof to establish whether claimant properly served this claim upon the Office of the Attorney General within ninety days of the accrual of the claim pursuant to Court of Claims Act (hereinafter "CCA") 10 and 11.[1]

In the underlying claim, claimant alleges he was injured when he slipped and fell on ice in an outside recreational area at Southport Correctional Facility on February 2, 1999. Claimant alleges he served a notice of intention on the Office of the Attorney General on or about March 5, 1999. This claim was filed in the Office of the Clerk of the Court on December 13, 1999. The State filed a Verified Answer on January 10, 2000 containing affirmative defenses including, among others, a jurisdictional defense that the claim was served by regular mail in violation of CCA 11. (State's Verified Answer, ¶ 6). This court noted said jurisdictional defense and issued the above-referenced Order to Show Cause in connection with claimant's motion to amend his claim which was denied. (Steed v State of New York, Ct Cl, March 1, 2004, Lebous, J., Claim No. 101592, Motion No. M-67979 [UID No. 2004-019-526]).[2]


In response to the court's Order to Show Cause, the State has come forward with proof relative to the service of claimant's notice of intention to file a claim and the claim. The State has established that the notice of intention to file a claim was served by certified mail, return receipt requested, and signed for by the Office of the Attorney General on March 5, 1999. (Claim, Exhibit). With respect to the claim, however, the State has submitted a copy of the envelope which clearly denotes that the Office of the Attorney General received the claim on December 8, 1999 by regular mail. (State's Exhibit C).


As such, it was claimant's burden to come forward with proof establishing proper and timely service in compliance with CCA 10 & 11. (Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). Setting aside the informalities of claimant's letter response, claimant alleges that his claim "[w]as filed in a timely matter [sic] and served on March fifth (5th) 1999." (Claimant's letter dated March 12, 2004). It appears that claimant is confusing service of his notice of intention to file a claim with the claim itself. In other words, proper service (either certified mail, return receipt requested or personal service) is required for both the notice of intention to file a claim and the claim itself according to CCA 11. It is true that claimant properly served his notice of intention by certified mail, return receipt requested, on March 5, 1999. However, claimant has failed to come forward with proof to establish that the claim was also served by either certified mail, return receipt requested, or personal service. The fact that claimant properly served his notice of intention to file a claim does not negate the requirement to serve the claim on the Office of the Attorney General by one of those same methods as required by CCA 11. Finally, claimant's statement that the correctional facility in which he is housed does not permit the use of certified mail, return receipt requested, for any documents other than a notice of intention is conclusory and unsupported by anything in this record.


It is a fundamental principle of practice in the court of claims that the filing and service requirements contained in CCA 10 and 11 are jurisdictional in nature and must be strictly construed. (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). Based upon this record, the court finds that claimant did not serve this claim on the Office of the Attorney General by either certified mail, return receipt requested, or personal service within two years after accrual as set forth in CCA 10 and 11. The court is without discretion to waive these requirements and, as such, this claim must be dismissed. The court cannot make provision for claimant to file a late filing application since it appears he is beyond the statutory period to do so which would have been three years from the date of accrual. (CCA 10 [6]).


Accordingly, for the reasons stated above, it is ORDERED that in response to the court's Order to Show Cause, Motion No. M-68111, that Claim No. 101592 is DISMISSED.


May 11, 2004
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]The court treated claimant's Notice of Motion received on April 2, 2004 as a request for an adjournment. The court granted claimant's request and adjourned the motion from March 31, 2004 to May 5, 2004. Additionally, the court deemed the State's Notice of Motion dated March 29, 2004 as reply papers to the court's Order to Show Cause.
[2]Unreported decisions from the Court of Claims are available via the Internet at