The following papers were read on Defendant's motion to dismiss the Claim
CPLR 3211(a)(2) and (8):
1) Notice of Motion and Supporting Affirmation of Senior Attorney Mary R.
(Humphrey Affirmation) filed September 1, 2004 with annexed Exhibits
OPPOSITION PAPERS: NONE
FILED PAPERS: Verified Claim filed August 2, 2004.
The Defendant has timely moved by pre-answer motion to dismiss the Claim
asserting that the Court lacks personal and subject matter jurisdiction as the
Notice of Intention was neither properly nor timely served and the subsequently
filed Claim was therefore untimely served. The Claim seeks damages for a slip
and fall accident which occurred at the Gouverneur Correctional Facility on
September 29, 2002.
Court of Claims Act §§ 10 and 11 provide that an unintentional tort
claim must be served and filed within 90 days of accrual of the cause of action
unless a notice of intention is served within such time. Section 11 provides
that a claim or notice of intention shall be served personally or by certified
mail, return receipt requested. The requirements set forth in Court of Claims
Act § 11 are jurisdictional in nature and, as such, must be strictly
construed (see Finnerty v New York State Thruway Auth., 75 NY2d
721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d
687; see also Lichtenstein v State of New York, 93 NY2d 911,
912-913 [applying same principles to requirements of Court of Claims Act §
10]). The Court is not free to temper application of a rule of law, whether
done in the exercise of discretion, equity or because there is no prejudice and
a harsh result will be avoided (see Martin v State of New York, 185 Misc
2d 799, 804-805, collecting cases). A claimant's failure to serve a notice of
intention to file a claim in the manner prescribed by section 11 precludes a
claimant from the benefit of the additional time granted by section 10 for
the filing of the claim itself (see Philippe v State of New York,
248 AD2d 827; see also Cendales v State of New York, 2 AD3d 1165).
Applying the foregoing to the instant Claim, unless Claimant properly and
timely served a Notice of Intention to file his claim, his Claim filed and
served in August 2004
, is untimely as to the
slip and fall accident on September 29, 2002.
The Defendant has provided counsel's affirmation and a photocopy of the
Exhibit D) in which the Notice of Intention was served to
establish same was not served by certified mail, return receipt requested but
rather by first class mail (see Philippe v State of New York
AD2d 827). The Court notes that thirty seven cents in postage, the amount
affixed to the envelope, is insufficient for certified mail (see e.g.
Weaver v State of New York
, Ct Cl, Sise, J., Claim No. 106248, UID
#2002-028-048, August 28, 2002). Moreover, Defendant has established that
Claimant failed to serve the Notice of Intention within 90 days of the accrual
of his Claim as the envelope (see
Exhibit D) in which it was mailed,
bears a postmark of January 29, 2003 - four months after
Here, there is no dispute, and the Court so finds, that the Notice of Intention
(see Humphrey Affirmation, Exhibit A) was both untimely and improperly
served by regular, first class mail. Taken together, Claimant's failure to
effect timely service of the notice of intention to file a claim upon the
Attorney General by personal service or by certified mail, return receipt
requested renders that document a nullity. Accordingly, the subsequent filing
and service of the Claim itself is untimely and requires dismissal of the claim
(Bogel v State of New York, 175 AD2d 493; see also Hodge v
State of New York, 213 AD2d 766).
In light of the foregoing, Defendant's motion to dismiss the Claim is GRANTED
and Claim No. 109683 shall be and hereby is dismissed.