After carefully considering the papers submitted and the applicable law the
motion is disposed of as follows:
Sylvia Jenkins appears to allege in Claim Number 110447 that Defendant's agents
wrongfully held mail directed to her, slandered her, subjected her to cruel and
unusual punishment in violation of the Eighth Amendment to the United States
Constitution, and failed to provide her with adequate medical treatment while
she was in the custody of the New York State Department of Correctional Services
(hereafter DOCS) at various correctional facilities. The date of accrual
alleged is August 18, 2004, with some indication that there are "additional
events that . . . [have] occurred . . . " [Claim No. 110447, ¶ 4]. A
Notice of Intention was served by regular mail, and filed stamped as "received"
by the Office of the Attorney General on September 22, 2004. [Affirmation in
Support of Motion to Dismiss,¶ 5, Exhibit 1]. The Claim itself was also
served by regular mail, file stamped "received" by the Office of the Attorney
General on February 2, 2005, and filed in the Office of the Chief Clerk of the
Court of Claims on February 2, 2005. [ibid. ¶ 6, Exhibit 2].
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). 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.
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
Additionally, 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 §
A claim alleging a negligence cause of action or an intentional tort, must be
served and filed within ninety (90) days of its accrual, while inmate personal
property loss claims must be served and filed within one hundred twenty (120)
days after the inmate has exhausted the personal property claims administrative
remedy. Court of Claims Act §§10(3), 10(3-b) and 10(9). With respect
to negligence and intentional tort causes of action, if a claimant serves a
Notice of Intention to file a Claim within ninety (90) days of accrual, then the
time period within which to serve and file a claim is extended to two (2) years
of accrual on any negligence cause of action, and one (1) year of accrual with
respect to any intentional tort cause of action.
The purpose of the Notice of Intention
put the Defendant State on notice of potential suit against it, so that it may
investigate the claim and infer a theory of liability. It also acts to extend
the period within which a Claim must be served and filed, provided it has been
properly served and contains the required information. While it need not be
scrutinized with the same attention as a pleading, it should nonetheless perform
its notice function, as well as provide specific enough information to determine
whether any subsequently served and filed Claim is timely filed.
In this case, a broad period of time for various alleged wrongs is set forth,
some of which are beyond the subject matter jurisdiction of this Court. The
Notice of Intention mentions an August 18, 2004 date of accrual related to the
State's alleged failure to give Claimant her mail, and then refers to slander,
without specifying when such slander took place. There is no mention of medical
negligence or medical malpractice.
As an initial matter, the Notice of Intention was not served certified mail,
return receipt requested as required [See Court of Claims Act §11
(a)(i)], and thus cannot operate to toll the statute of limitations. Calco v
State of New York, 165 AD2d 117 (3d Dept 1991). Thus assuming a date of
accrual of August 18, 2004, the claim was not timely served and filed and is
dismissed on that ground alone.
Additionally, the claim was not served in accordance with the jurisdictional
requirements of Court of Claims Act §11, in that it was not served
personally or by certified mail, return receipt requested. Claimant has not
established that she 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).
Moreover, the claim fails to state a cause action in that it does not contain
the essential statutory and regulatory elements required by Court of Claims Act
§11 (b) and 22 NYCRR §206.6. The only date of accrual alleged is
August 18, 2004, and it appears to refer only to the personal property loss
alleged. What is alleged to have been lost and its value is not stated
With regard to any cause of action for slander, the specific words are not set
forth [See Civil Practice Law and Rules §3016], nor does the claim
identify the state employees involved or where any incidents took place.
A claim alleging violation of the Eighth Amendment prohibition against cruel
and unusual punishment is based upon a violation of the Federal Constitution,
and should be pursued pursuant to 42 USC §1983. No cause of action against
the State of New York exists for alleged violations of an individual's rights
under the United States Constitution [See Welch v State of New
York, 286 AD2d 496, 498 (2d Dept 2001); Zagarella v State of New
York, 149 AD2d 503 (2d Dept 1989; Davis v State of New York, 124
AD2d 420, 423 (3d Dept 1986)], in that the State is not a "person" amenable to
suit pursuant to 42 USC §1983.
Finally, claimant states that she reported pains in her right knee and a lump
near her neck and chest, and that her complaints were ignored - seemingly - but
it is unclear what the allegations of negligence are, and, although there are
April 2004 and December 2004 dates mentioned, from a plain reading of the claim
it is unclear when the alleged negligence occurred, or what acts or omissions
constituted such negligence.
Accordingly, Claim Number 110447 is hereby dismissed in its entirety, for both
a lack of subject matter and personal jurisdiction.