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.