New York State Court of Claims

New York State Court of Claims

MADDOX v. THE STATE OF NEW YORK, #2005-015-002, Claim No. 107082, Motion No. M-69293


Court dismissed claim for lack of jurisdiction where neither claim nor notice of intention was timely served on the defendant.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Dwight Maddox, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 27, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

Defendant's motion to dismiss the claim on the ground that claimant failed to timely serve either a notice of intention or a claim upon the Attorney General is granted. The instant claim seeks to recover $7,500.00 on each of two causes of action, the first sounding in negligence and the other alleging cruel and unusual punishment. The claim alleges that claimant was injured on July 20, 2002 when he was ordered to carry his property and move upstairs by Correction Officer Griffin despite a medical pass restricting the claimant to ground floor housing. The claim alleges that the stated causes of action accrued at Great Meadow and Eastern New York Correctional Facilities. Claimant alleges that he fell down the stairs injuring his foot and back while attempting to comply with C.O. Griffin's directive.

Claimant prepared a verified notice of intention dated 10/08/02 which he purportedly served by certified mail, return receipt requested upon the Attorney General's White Plains Office (see Movant's Exhibit C). The affidavit of service alleges service of the notice on 10 October 2002 but was sworn to before a notary public on October 8, 2002. Exhibit C also contains the envelope used to serve the notice of intention which bears a postage meter stamp for $4.65 and shows a date of October 17, 2002. It further contains date stamps indicating receipt by the New York State Attorney General's Westchester Regional Office on October 22, 2002 and its subsequent receipt by the Attorney General's Claims Bureau on October 23, 2002.

Movant also submitted as Exhibit D another verified notice of intention dated the same day (10/08/02) which was accompanied by a similar affidavit of service notarized on October 8, 20002 [sic] but alleging service on October 10, 2002, two days subsequent to the date the affidavit was notarized. The accompanying mailing envelope shows a postage meter stamp dated October 21, 2002 and postage paid in the amount of $4.65. Date stamps on the face of the envelope demonstrate its receipt by the Attorney General's Westchester Regional Office on October 24, 2002 and by the Attorney General's Claims Bureau on October 29, 2002.

Claimant subsequently served the claim upon the Attorney General which was received by the Attorney General's New York District Claims Bureau on December 17, 2002. The claim was transmitted to the Claims Bureau in Albany where it was received on December 19, 2002.

In its answer to the claim the defendant specifically alleged:

SEVENTH: That this Court lacks subject matter jurisdiction over the claim and personal jurisdiction over the defendant, The State of New York, as the claim is untimely in that neither the claim nor a notice of intention was served within ninety (90) days of the accrual of the claim as required by Court of Claims Act Sections 10(3) and 11.
This claim was scheduled for trial at a prison term of the Court set for November 9, 2004 at Great Meadow Correctional Facility, Comstock, New York. The trial was adjourned, however, at the defendant's request due to the temporary unavailability of C.O. Griffin. The letter requesting the adjournment of the trial also advised claimant that the defendant was not requesting that the pending motion be adjourned. Despite this admonition the claimant has not opposed the instant motion which seeks to dismiss the claim as untimely served and filed.

As the Appellate Division, Second Department in Welch v State of New York (286 AD2d 496) observed at pp 497 - 498:
Pursuant to Court of Claims Act § 10, '[n]o judgment shall be granted in favor of any claimant' for personal injuries due to negligence, unintentional tort, or intentional tort of a State employee, unless a claim is filed and served upon the Attorney General within 90 days after the accrual of the claim, or the claimant, within 90 days after the accrual of the claim, serves upon the Attorney General a written notice of intention to file a claim therefor, and thereafter files and serves the claim upon the Attorney General within two years after the accrual of the claim (see, Conner v State of New York, 268 AD2d 706; Coleman v Webb, 158 AD2d 500). As a condition of the State's limited waiver of sovereign immunity, those requirements are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim (see, Alston v State of New York, 281 AD2d 741; Crair v Brookdale Hosp. Med. Ctr., 259 AD2d 586, affd 94 NY2d 524; Phillips v State of New York, 237 AD2d 590; Voulgarelis v State of New York, 211 AD2d 675).
The allegations set forth in the claim establish an accrual date of July 20, 2002. As a result the 90-day period prescribed for service of the claim or notice of intention expired on October 18, 2002. Since by statute service upon the Attorney General by certified mail, return receipt requested is not complete until a notice of intention or claim is received in the Office of the Attorney General (see Court of Claims Act § 11 (a) [i]) service of the notices of intention in this matter were respectively 4 and 6 days late. Service of the claim itself on December 17, 2002 was likewise outside the period authorized in the Court of Claims Act for service and filing a claim when measured against the July 20, 2002 accrual date.

Since neither the notices of intention nor the claim were timely served the defendant's motion to dismiss the claim for lack of jurisdiction must be granted. The dismissal of the claim obviates the need for a trial.

January 27, 2005
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated October 26, 2004;
  2. Affidavit of Michael C. Rizzo sworn to October 26, 2004 with exhibits.