Tiquan Davis, the Claimant herein, alleges in Claim number 106166 that
Defendant's agents negligently provided him with the wrong medication while he
was incarcerated at Green Haven Correctional Facility (hereafter Green Haven),
causing him injury. Trial of the matter was scheduled to go forward on February
As an initial matter, Defendant moved to dismiss the Claim, arguing that the
Court lacked jurisdiction because Claimant had failed to serve the Claim upon
the Office of the Attorney General either personally or by certified mail,
return receipt requested as required, and in conformance with a prior Decision
and Order granting him late claim relief, and directing service of the Claim
within sixty days (60) of the filing of the Decision. [See Davis v
State of New York, Claim no. None, Motion No. M-64181 (Waldon, J., filed
April 12, 2002)].
The Assistant Attorney General produced an Affidavit from Catherine Naveed, a
clerk in the Claims Bureau of the New York City Office of the Attorney General
of the State of New York, dated October 15, 2004 in which it is indicated that
neither a Notice of Intention or Claim was ever received by the Attorney
General's Office. [Defendant's Exhibit A]. The only documents received were a
copy of a letter from the Chief Clerk's Office dated June 18, 2002 directed to
Claimant indicating that a claim had been filed with the Court, and an Order
reducing the filing fee. [id.]. No Answer by the Attorney General was
served or filed.
Claimant produced a return receipt showing receipt by the Attorney General's
Office of something on September 22, 2001, and asserted that he wrote to the
Chief Clerk of the Court of Claims, asking whether he needed to serve the
Attorney General with "another claim"
Judge Waldon's Decision granting him permission to serve and file a late claim.
He claimed he had a response from the Chief Clerk telling him he did not need to
serve the Attorney General again. Apparently, an identical claim had either
been served upon the Attorney General in September 2001, when Claimant brought
his motion for late claim relief, or was part of the motion for late claim
relief. When asked to produce copies of this correspondence, however, he could
not, nor did the Court find copies of this correspondence in the Clerk's
Because of the possible confusion, and without indicating whether such
correspondence would have a legal consequence given the strict requirements of
the Court of Claims Act, the Court reserved decision on the Defendant's motion,
and Claimant was given an opportunity to provide the Court with copies of the
letters mentioned within two (2) weeks of the trial date or by March 11,
The Court received a letter from Mr. Davis on March 10, 2005 indicating that he
was unable to obtain a copy of the correspondence he discussed.
As of today's date, the Court has not received copies of the correspondence or
proof of proper service of the Claim in any event. The Court has also reviewed
the correspondence contained in the Clerk's file and finds that there are no
letters such as those described by Claimant.
The filing and service requirements contained in §§10 and 11 of the
Court of Claims Act are jurisdictional in nature and must be strictly construed.
Finnerty v New YorkState Thruway Auth., 75 NY2d 721, 722-723 (1989).
Service upon the Attorney General by ordinary mail is insufficient to acquire
jurisdiction over the State, as is mail service by any means other than
certified mail, return receipt requested, unless the State has failed to
properly plead jurisdictional defenses or raise them by motion. Court of Claims
Act §11(c); Edens v State of New York, 259 AD2d 729 (2d Dept 1999);
Philippe v State of New York, 248 AD2d 827 (3d Dept 1998).
Additionally, the Claimant has the burden of establishing proper service.
Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept 1989). Regulations require
that proof of service be filed with the Chief Clerk within ten (10) days of
service on the Defendant. 22 NYCRR § 206.5(a).
As noted, no Answer by the Attorney General was served or filed. This has been
found to be "reflective of the failure to have served the claim." See
Dunn v State of New York, Claim No. 98551, M-62308, 62310, CM-62324
(September 20, 2000; Corbett, Jr., J.). The State has raised the jurisdictional
issue in a timely motion as required.
Accordingly, Claimant has failed to establish, by a fair preponderance of the
credible evidence, that the Attorney General was served with a copy of the claim
as required by Court of Claims Act §11(a), and, therefore, this Court does
not have jurisdiction.
Claim Number 106166 is hereby dismissed in its entirety.