New York State Court of Claims

New York State Court of Claims

WILLIAMS v. THE STATE OF NEW YORK, #2004-031-118, Claim No. 103367, Motion No. M-69018


Synopsis


Notice of intention to file claim served more than 90 days after accrual is untimely. Claim subsequently filed by regular mail was untimely and failed to comply with Court of Claims Act § 11(a). Claim dismissed

Case Information

UID:
2004-031-118
Claimant(s):
RAY WILLIAMS
Claimant short name:
WILLIAMS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103367
Motion number(s):
M-69018
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
RAY WILLIAMS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: PAUL VOLCY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 15, 2004
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers, numbered 1 through 3, were read on motion by Defendant to dismiss the claim for untimely and improper service:
  1. Notice of Motion, filed August 30, 2004;
2) Affirmation of Paul Volcy, Esq., dated August 26, 2004, with attached exhibits;
3) Filed Documents: Claim and Answer. Claimant commenced this action for personal injuries by filing a claim on November 9, 2000. The cause of action allegedly accrued on December 5, 1998 when Claimant fell on an alleged defect in an indoor gymnasium floor at Collins Correctional Facility. Claimant served Defendant with a notice of intention to file a claim on March 8, 1999. Claimant served Defendant with the claim by regular first class mail on November 2, 2000.

Based on these events, Defendant brings this motion seeking dismissal of the claim, citing Claimant's failure to file and serve a claim or serve the notice of intention to file a claim within 90 days as required by Court of Claims Act § 10(3), and failing to serve the claim by certified mail, return receipt requested, as required by Court of Claims Act § 11(a). Claimant has not responded to Defendant's motion.

Defendant has adequately demonstrated that service of the notice of intention occurred on the 93rd day after accrual of Claimant's cause of action. Defendant has also demonstrated that the subsequent service of the claim was accomplished by regular first class mail. A copy of the envelope in which the claim was served is attached to Defendant's moving papers in exhibit B. Defendant properly preserved the defense of improper service of both the notice of intention to file a claim and the claim in its Answer, dated December 6, 2000.

Pursuant to Court of Claims Act § 10(3), a claim based upon personal injury resulting from the negligence of an agent of the State, such as is alleged here, must be filed within ninety days, unless Claimant has served a notice of intention to file a claim. No claim was filed, and neither the claim nor the notice of intention were properly served upon the Attorney General within 90 days of accrual.

Further, Court of Claims Act § 11(a) provides, in relevant part, that a copy of the notice of intention to file a claim, and the claim shall be served "personally or by certified mail, return receipt requested," upon the Attorney General. Therefore, Claimant has failed to meet the literal requirements of Court of Claims Act § 11. Service of the claim upon the Attorney General by first class mail was improper (see Dreger v New York State Thruway Authority, 81 NY2d 721; Negron v State of New York, 257 AD2d 652; Philippe v State of New York, 248 AD2d 827).

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). The Court is not free to disregard this requirement. "[D]iscretion, equity, or a harsh result may not temper application of a rule of law" (Martin v State of New York, 185 Misc 2d 799, 804). Defendant has adequately demonstrated that Claimant failed to meet the literal requirements of Court of Claims Act §§ 10 and 11, and the claim must be dismissed.

Based upon the foregoing it is

ORDERED, that Defendant's motion for dismissal of the claim is granted. The Clerk of the Court is directed to close the file.

September 15, 2004
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims