New York State Court of Claims

New York State Court of Claims

SIMS v. STATE OF NEW YORK, #2005–018-489, Claim No. 109953, Motion No. M-70401


Synopsis


The claim is dismissed pursuant to §§ 10 and 11 of the Court of Claims Act.

Case Information

UID:
2005–018-489
Claimant(s):
LEROY SIMS
Claimant short name:
SIMS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109953
Motion number(s):
M-70401
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
LEROY SIMSPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 9, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings a motion to dismiss the claim on the ground that the notice of intention

was not properly served in accordance with Court of Claims Act §§ 10 and 11 and was not properly verified in accordance with Court of Claims Act § 11(b). Claimant has submitted no opposition to the Defendant's motion.

Defendant has attached, as an exhibit to the motion, a copy of the notice of intention and a copy of the envelope in which the notice of intention was received evidencing only $.37 in postage.

The Court of Claims Act § 11 (a)(i) states in relevant part that "Any notice of intention shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for service upon the attorney general."

Here, Claimant served the notice of intention upon the Attorney General by regular mail. The failure to properly serve the Attorney General pursuant to the statute is a jurisdictional defect (see Bogel v State of New York, 175 AD2d 493, 494, "[s]ervice of claims upon the Attorney- General by ordinary mail was insufficient to acquire jurisdiction over the State" and the claim was therefor properly dismissed; Diaz v State of New York, 174 Misc 2d 63, 64, "service by regular mail does not comply with the requirements of the statute and such service is therefore not adequate to acquire jurisdiction over the State." Furthermore, "the court does not have discretion to disregard the defect").

The failure to properly serve the notice of intention precludes the Claimant from having more than 90 days from the date of accrual within which to file and serve the claim. The claim, filed and served by Claimant on October 12, 2004, was therefore untimely having been brought one year and three months after the claim accrued.

The balance of Defendant's arguments for dismissal need not be addressed as Defendant's motion must be granted and the claim DISMISSED.


November 9, 2005
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:

Notice of Motion....................................................................................1

Affirmation of G. Lawrence Dillon, Esquire, Assistant Attorney

General with exhibits attached thereto.......................................2


No response was received from Claimant.