New York State Court of Claims

New York State Court of Claims

HERRERA-GALEANA v. THE STATE OF NEW YORK, #2004-028-566, Claim No. 109683, Motion No. M-69083


Synopsis


Defendant's motion to dismiss the Claim is granted. Notice of Intention was

improperly served and Claim was therefore untimely filed.


Case Information

UID:
2004-028-566
Claimant(s):
MANUEL HERRERA-GALEANA
Claimant short name:
HERRERA-GALEANA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109683
Motion number(s):
M-69083
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
MANUEL HERRERA-GALEANA, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Mary R. HumphreySenior Attorney
Third-party defendant's attorney:

Signature date:
November 1, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read on Defendant's motion to dismiss the Claim pursuant to


CPLR 3211(a)(2) and (8):


1) Notice of Motion and Supporting Affirmation of Senior Attorney Mary R. Humphrey

(Humphrey Affirmation) filed September 1, 2004 with annexed Exhibits (A-F)


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[1], 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 envelope (see 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, 248 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 accrual[2].

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.


November 1, 2004
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] Defendant acknowledges that the Claim was properly served by certified mail return receipt requested (Humphrey Affirmation ¶ 4, Exhibit F).
[2] Claimant had timely, albeit mistakenly, filed his Notice of Intention with the Clerk of the Court. The Clerk of the Court returned same to Claimant on December 31, 2002 (see Humphrey Affirmation Exhibit A) and advised him that as of August 2, 1995 it was no longer necessary to file the Notice of Intention with the Clerk (id. Exhibit B).