Walter Jordan alleges in Claim Number 107194 that Defendant's agents at Green
Haven Correctional Facility negligently allowed a dangerous condition to exist
in the shower area causing Claimant to slip, fall and suffer injury. Trial of
the matter was scheduled to go forward on October 17, 2005.
On that date, Defendant moved to dismiss the claim on the basis of a lack of
jurisdiction, in that the Attorney General's Office was never served with the
claim. In support of this contention, Defendant provided an Affidavit from a
Catherine Naveed, a clerk in the Claims Bureau of the New York City Office of
the Attorney General of the State of New York, whose duties include familiarity
and access to the record keeping system of the Claims Bureau. [Defendant's
Exhibit "A"]. She indicates in her Affidavit that a letter from the Office of
the Chief Clerk of the Court of Claims was received by the Attorney General's
Office on February 3, 2003, but no Notice of Intention to file a Claim and no
Claim was ever received [id.]. Additionally, she made inquiries of the
local offices of the Attorney General and received no response [id.].
According to the file maintained by the Chief Clerk for the Court of Claims,
there is no Affidavit of Service from the Claimant reflecting service of the
Claim, and no Answer by the Attorney General was served or filed.
Claimant was not able to produce receipts showing that the Claim was served
upon the Attorney General by certified mail, return receipt requested. He
stated that he had served the claim properly but could not produce proof because
he did not have his paperwork with him, but could obtain it. In consideration
of his assertion, the Court granted Claimant an additional ten (10) days from
the trial date - or October 27, 2005 - to forward proof of service to the
Although Claimant forwarded two letters to the Court since the day of trial,
received on October 20, 2005 and October 31, 2005, respectively, the
correspondence merely repeats the assertions in his Claim, and does not contain
any proof of service.
The filing and service requirements contained in Court of Claims Act
§§10 and 11 are jurisdictional in nature and must be strictly
construed. Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723
(1989); see also, Welch v State of New York, 286 AD2d 496,
729 NYS2d 527, 529 (2d Dept 2001); Conner v State of New York, 268 AD2d
706, 707 (3d Dept 2000). Indeed, the statute provides in pertinent part ". . .
[n]o judgment shall be granted in favor of any claimant unless such claimant
shall have complied with the provisions of this section applicable to his claim
. . ." Court of Claims Act §10.
Court of Claims Act §11(a) provides that ". . . a copy [of the claim]
shall be served personally or by certified mail, return receipt requested, upon
the attorney general . . ." within the time prescribed in Court of Claims Act
§10; and service is complete when it is received in the Attorney General's
Office. Court of Claims Act §11(a). Service upon the Attorney General by
ordinary mail is generally insufficient to acquire jurisdiction over the State,
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).
The Claimant has the burden of establishing proper service [Boudreau v
Ivanov, 154 AD2d 638, 639 (2d Dept 1989)] by a preponderance of the
evidence. See Maldonado v County of Suffolk, 229 AD2d 376 (2d Dept
1996). 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 above, 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, M-62310,
CM-62324 (September 20, 2000, Corbett, Jr., J.).
Here, the Claimant has not been able to establish that he served the Claim upon
the Attorney General as required, and the Defendant has raised the
jurisdictional issue in a timely motion. Thus 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) .
Accordingly, Claim Number 107194 is hereby dismissed for a lack of