Willie Jenkins, the Claimant herein, alleges in Claim Number 106574 that
Defendant's agents negligently or intentionally lost his property while he was
an inmate at Green Haven Correctional Facility (hereafter Green Haven). Trial
of the matter was held on October 22, 2004.
As an initial matter, Defendant made application to dismiss the Claim based
upon Claimant's alleged failure to timely serve the Claim upon the Attorney
General by certified mail, return receipt requested. In support of this
contention, Defendant provided an Affidavit from a Catherine Naveed, a clerk in
the Claims Bureau of the New York City Office of the Attorney General of the
State of New York, dated October 15, 2004 in which it is indicated that although
2 documents entitled Notice of Intention were received on, respectively,
September 18, 2002 and October 7, 2002, no Claim was ever received by the
Attorney General's Office. [Exhibit "A"]. The only other document received was
a copy of a letter from the Chief Clerk's Office dated September 13, 2002
directed to Claimant indicating that a claim had been filed with the Court.
The Assistant Attorney General also submitted a copy of a Notice of Intention
stamped as received by the Attorney General's Office on October 7,
[Exhibit B]. It is noted that the document entitled Claim that was filed with
the Chief Clerk of the Court of Claims was filed on September 3, 2002. No
affidavit of service accompanies the Claim.
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,CM-62324 (September 20, 2000, Corbett, Jr., J.).
Claimant was not able to produce receipts showing that either the Notice of
Intention or the Claim was served by certified mail, return receipt requested.
He stated that he had served the Claim but could not produce proof because he
did not have his paperwork with him, having left Southport Correctional Facility
without his paperwork. In consideration of his assertion, the Court granted
Claimant an additional two weeks from the trial date - or until November 5, 2004
- to forward proof of service to the Court. As of November 19, 2004 no such
proof has been received.
The filing and service requirements contained in Court of Claims Act
§§10 and 11
are jurisdictional in nature and must be strictly construed. Finnerty v New
York State Thruway Auth.
, 75 NY2d 721, 722-723 (1989); See
also Welch v State of New York
, 286 AD2d 496, 729 NYS2d 527, 529
(2d Dept 2001); Conner v State of New York
, 268 AD2d 706, 707 (3d Dept
2000). 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 Act §10.
Court of Claims Act §11(a) provides that ". . . a copy [of the claim]
shall be served upon the attorney general
. . . either personally or by certified mail, return receipt requested . . . "
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(c). 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 Claims Act; Edens v State of New York
, 259 AD2d 729
(2d Dept 1999); Philippe v State of New York
, 248 AD2d 827 (3d Dept
The Claimant has the burden of establishing proper service [Boudreau v
, 154 AD2d 638, 639 (2d Dept 1989)] by a preponderance of the
evidence. See Maldonado v County of Suffolk
, 229 AD2d 376 (2d Dept
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
timely served with a copy of the claim as required by Court of Claims Act
§11(a). Accordingly, Claim Number 106574 is hereby dismissed for a lack of
Let judgment be entered accordingly.