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
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]).
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
Claim, filed February 3, 2005.
Verified Answer, filed March 10, 2005.
DECISION AND ORDER, Lebous, J., Claim No. 110454, Motion No. M-69920, filed May
Order to Show Cause, Motion No. M-70096, dated May 2, 2005, and filed May 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.
Letter from Claimant to the Chief Clerk, dated July 8, 2005, and received July