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). 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
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
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.