New York State Court of Claims

New York State Court of Claims

STRUNKEY v. THE STATE OF NEW YORK, #2005-009-022, Claim No. 110272, Motion No. M-69698


Synopsis


Defendant's motion to dismiss the claim based upon improper service was granted.

Case Information

UID:
2005-009-022
Claimant(s):
TORREY STRUNKEY
Claimant short name:
STRUNKEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110272
Motion number(s):
M-69698
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
TORREY STRUNKEY, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
April 14, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this pre-answer motion seeking an order of dismissal based upon claimant's alleged failure to properly serve his claim.

The following papers were considered by the Court in connection with this motion:
Pre-Answer Motion to Dismiss Claim, Affirmation, with Exhibits 1,2


"Reply Affidavit" from Claimant 3

In this claim, claimant, an inmate under the care and custody of the New York State Department of Correctional Services, seeks damages for personal injuries suffered when he injured his right foot while playing handball on a court at Marcy Correctional Facility on August 1, 2004. The claim is based upon allegations of negligent maintenance by the State, and also contains allegations of medical malpractice and/or negligence in the treatment of his injury.

A claim alleging acts of negligence against the State must be served on the Attorney General and filed with the Clerk of the Court of Claims within 90 days of accrual, unless a Notice of Intention is served upon the Attorney General within such 90 days (Court of Claims Act § 10[3]). If a Notice of Intention is so served upon the Attorney General, the claim must then be served and filed within two years from the date of accrual. Additionally, Court of Claims Act § 11(a) requires that a claim or a Notice of Intention must be served upon the Attorney General either personally or by certified mail, return receipt requested.

In this particular matter, defendant acknowledges that a Notice of Intention to File a Claim was received by the Attorney General on September 29, 2004, and that such Notice of Intention was served by certified mail, return receipt requested, as required by statute.

As set forth in the Affirmation by defendant's attorney in support of its motion, however, defendant asserts that the claim was served on the Attorney General on December 27, 2004 by regular, first class mail, and not by certified mail, return receipt requested. With regard to the service of the claim, defendant has attached a copy of the envelope in which it was mailed (see Exhibit D to Items 1,2) which contains no markings to indicate that the claim was mailed by certified mail, return receipt requested, as required by statute.

In his response (see Item 3) claimant acknowledges this defect in the service of his claim, and has requested that dismissal of the claim be made without prejudice in order to allow him the opportunity to serve and file a new claim based upon these same factual allegations.

Since the provisions as to the time and manner of service and filing are jurisdictional prerequisites to the maintenance of a claim, they must be strictly construed (Greenspan Bros. v State of New York, 122 AD2d 249), and this Court therefore does not have the authority to cure or overlook defects in the time and/or manner of service and filing. Accordingly, this claim must be dismissed.

Based upon the foregoing, therefore, it is

ORDERED, that Motion No. M-69698 is hereby GRANTED; and it is further

ORDERED, that Claim No. 110272 is hereby DISMISSED, without prejudice.


April 14, 2005
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims