New York State Court of Claims

New York State Court of Claims

GEORGE v. THE STATE OF NEW YORK, #2005-019-549, Claim No. 110454, Motion No. M-70096


In response to court's sua sponte Order to Show Cause, claim is dismissed due to claimant's failure to establish proper manner of service of claim upon Office of Attorney General.

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:
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
July 15, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


By an Order to Show Cause filed in the Office of the Clerk of the Court on May 5, 2005, this court, sua sponte, directed both parties to submit written statements and any relevant proof to establish whether claimant, an inmate appearing pro se, properly served this claim upon the Office of the Attorney General within ninety days of the accrual of the claim pursuant to Court of Claims Act (hereinafter "CCA") 10 and 11.

Claimant served a notice of intention on the Office of the Attorney General on January 18, 2005 by certified mail, return receipt requested. The notice of intention alleges that claimant tested positive for hepatitis B on October 21, 2004 while incarcerated at Southport Correctional Facility, but was not informed of these results nor provided any medical treatment for his condition.

Thereafter, claimant served a claim alleging that he was denied medical treatment from November 9, 2004 to January 20, 2005 (presumably relating to his hepatitis B) resulting in pain and stiffness in his left hamstring.[1] The State avers that this claim was served on it by regular mail on February 2, 2005. The claim was filed in the Office of the Clerk of the Court on February 3, 2005. The State filed a Verified Answer on March 10, 2005 containing affirmative defenses including, among others, a jurisdictional defense that the claim was served by regular mail in violation of CCA 11. (State's Verified Answer, ¶ 5). This court noted said jurisdictional defense while denying claimant's motion for poor person status and issued the above-referenced Order to Show Cause. (George v State of New York, Ct Cl, May 2, 2005, Lebous, J., Claim No. 110454, Motion No. M-69920 [UID No. 2005-019-534]).[2]

In response to the court's Order to Show Cause, the State has come forward with proof relative to the service of the claim, namely a copy of the envelope in which the claim was served which clearly denotes that the Office of the Attorney General received the claim on February 2, 2005 by regular mail. As such, it was claimant's burden to come forward with proof establishing proper and timely service in compliance with CCA 10 & 11. (Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). Claimant submitted a letter to the Chief Clerk of the court dated July 8, 2005 requesting "[t]hat the court remove my claim, #11054 [sic] from it's docket, in it's entirety, without prejudice." (Court Ex. 1; emphasis in original).

It is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in CCA 10 and 11 are jurisdictional in nature and must be strictly construed. (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). Based upon this record, the court finds that claimant did not serve this claim by either certified mail, return receipt requested, or personal service within ninety days after accrual on the Office of the Attorney General as set forth in CCA 11. The court is without discretion to waive these requirements and, as such, this claim must be dismissed.

Accordingly, for the reasons stated above, it is ORDERED that in response to the court's Order to Show Cause, Motion No. M-70096, that Claim No. 110454 is DISMISSED.

July 15, 2005
Binghamton, New York
Judge of the Court of Claims

The court has considered the following papers in connection with this motion:
  1. Claim, filed February 3, 2005.
  2. Verified Answer, filed March 10, 2005.
  3. DECISION AND ORDER, Lebous, J., Claim No. 110454, Motion No. M-69920, filed May 13, 2005.
  4. Order to Show Cause, Motion No. M-70096, dated May 2, 2005, and filed May 5, 2005.
  5. Affirmation of Carol A. Cocchiola, AAG, in response to Order to Show Cause, dated July 1, 2005, and filed July 5, 2005, with attached exhibits.
  6. Letter from Claimant to the Chief Clerk, dated July 8, 2005, and received July 13, 2005.

[1]It is not entirely clear whether the notice of intention and claim relate to the same events or separate and distinct matters.
[2]Selected unreported decisions from the Court of Claims are available via the Internet at