Eniezer Rios, the Claimant herein, alleges in Claim Number 107047 that
Defendant's agents assaulted him while he was incarcerated at Downstate
Correctional Facility in the custody of the New York State Department of
Correctional Services. Trial of the matter was scheduled to proceed on April
As an initial matter, Defendant made a motion to dismiss the claim based upon a
failure to properly serve the claim pursuant to Court of Claims Act §11. In
support of this contention, the Attorney General submitted an affidavit from the
records clerk at the Office of the Attorney General indicating that there was no
record of the Attorney General's Office having received any documents connected
with this Claim except for a copy of a letter from the Court of Claims directed
to Claimant acknowledging receipt of the Claim by the Court. [State's Exhibit
The copy of the Claim contained in the Court's file includes an affidavit of
service indicating that Claimant had served the Claim upon the Attorney General
by regular mail. Claimant did not have proof of service in the form of receipts
for certified mail. The Court notes that no Answer by the Attorney General was
served or filed. This has been found to be "reflective of the failure to have
served the claim."
See Dunn v State of New York
, Claim No. 98551, Motion Nos.
M-62308, M-62310, Cross-Motion No. CM-62324 (September 20, 2000, Corbett, J.)
The filing and service requirements contained in Court of Claims Act
§§10 and 11 are jurisdictional in nature and must be strictly
Finnerty v New York State Thruway Auth.
, 75 NY2d 721, 722-723 (1989).
Indeed, the statute provides in pertinent part ". . . [n]o judgment shall be
granted in favor of any claimant unless such claimant shall have complied with
the provisions of this section applicable to his claim . . . " Court of Claims
Service upon the Attorney General by ordinary mail is generally insufficient to
acquire jurisdiction over the State unless the State has failed to properly
plead jurisdictional defenses or raise them by motion. §11(c) Court of
Edens v State of New York
, 259 AD2d 729 (2d Dept 1999); Philippe v
State of New York
, 248 AD2d 827 (3d Dept 1998). Court of Claims Act
§11(a) provides that ". . . a copy [of the claim] shall be served
personally or by certified mail, return receipt requested, upon the attorney
general . . ." within the time prescribed in Court of Claims Act §10, and
service is complete when it is received in the Attorney General's Office. Court
of Claims Act §11(a)(i). Additionally, the Claimant has the burden of
establishing proper service by a preponderance of the evidence. Boudreau v
, 154 AD2d 638, 639 (2d Dept 1989).
Here, the Claimant has not been able to establish that he served the Claim upon
the Attorney General as required, and the Defendant has raised the
jurisdictional issue in a timely motion. Thus Claimant has failed to establish,
by a fair preponderance of the credible evidence, that the Attorney General was
served with a copy of the claim as required by Court of Claims Act §11(a).
Accordingly, Claim Number 107047 is hereby dismissed for lack of
jurisdiction. Let judgment be entered accordingly.