After carefully considering the papers submitted, filed papers, and the
applicable law, the motion is disposed of as follows:
Judy Guzman, the Claimant herein, alleges in Claim Number 110480-A that
Defendant's agents failed to provide her with adequate and timely medical care
while she was incarcerated at various correctional facilities, in the custody of
the New York State Department of Correctional Services [hereafter DOCS].
Specifically, she states that she received ". . . inadequate medical treatment
from October 2003 to the present . . ." after an injury she suffered to her knee
at a farm work program in September 2003. [See Claim No. 110480-A, ¶¶
2 and 3]. She also indicates that Defendant's agents were negligent in failing
to provide a safe work environment in the first instance, in failing to provide
proper training to inmates new to farm work, failing to post warning notices
concerning dangers involved in farm work, and in failing to remove claimant from
the work crew once she was injured, but these allegations are not specific as to
any time frame. Notably, the last date of medical treatment alleged in the
claim is April 2004.
In the Claim, she states
that a Notice of Intention was served on July 6, 2004, but no copy has been
proffered by Claimant.
The Claim itself was served upon the office of the Attorney General on February
22, 2005. [Exhibit 1, Affirmation in Support, ¶ 3]. The Claim was filed
in the Office of the Chief Clerk of the Court of Claims on February 9, 2005. An
affidavit of service filed by Claimant indicates that the Claim was served upon
the Attorney General by certified mail, return receipt requested on "September
__, 2004." Court of Claims Act §11; 22 NYCRR §206.5(a). Defendant
indicates, however, that the claim was served by regular mail, and has appended
a copy of the envelope in which the Claim was received by the Attorney General's
Office showing that none of the indicia of an article of mail having been sent
certified mail, return receipt requested, is present on the envelope.
[See Exhibit 1, Affirmation in Support]. Additionally, the Affidavit of
Service appended to Claim number 110480-A, given the date alleged, does not
appear to refer to this Claim, but rather to Claim number 109912.
In a prior Decision and Order dismissing Claim Number 109912 - which is
identical to the present Claim - part of the rationale for the dismissal had
been that there was no proof that a Notice of Intention had been served within
ninety (90) days of accrual of the Claim, rendering the Claim untimely. Thus,
when Defendant sought dismissal of Claim Number 109912 by motion - a motion that
was unopposed just as this one is - the Court was unaware that a Notice of
Intention may actually have been served upon the Office of the Attorney General
in July 2004, extending the time within which Claimant could serve and file her
Notably, in the photocopies of documents the Assistant Attorney General has
appended to the present motion, in addition to the envelope referred to, there
is a copy of a Notice of Intention stamped as having been returned to Claimant
by the Office of the Chief Clerk of the Court of Claims on June 18, 2004, an
Affidavit of Service by Claimant indicating that a Notice of Intention was
served certified mail, return receipt requested upon the Office of the Attorney
General on July 6, 2004, and a copy of a return receipt received stamped by the
Attorney General's Office on July 12, 2004. [See Affirmation in Support,
Exhibit 1]. This is the first time the Court has seen this Notice of Intention
and associated proofs.
According to correspondence contained in the Clerk's file, Claimant wrote to
the Clerk after Claim Number 109912 was dismissed saying she did have proof that
her claim was timely. In response, the Clerk's office wrote to her saying she
could make a motion pursuant to Civil Practice Law and Rules §2221, that
would be calendared before the Judge deciding the prior Order dismissing her
claim, or, she could "attempt to file another claim premised upon . . . [her]
Notice of Intention." [Letter to Judy Guzman, dated January 27, 2005]. It
appears she took the latter course.
Unfortunately, the Claim does not appear to have been served by certified mail,
return receipt requested as required. Court of Claims Act §§10 and 11.
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). 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).
Additionally, the Claimant has the burden of establishing proper service.
Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept 1989).
In a letter directed to the Clerk's office, Claimant asked that the "court
date" of April 13, 2005 - the return date of this motion indicated in
Defendant's papers - be changed to a later date. Although given an adjournment
of the original return date on this motion in order to serve papers in
opposition to it, Claimant has not submitted opposition, and this motion was
marked submitted without opposition on May 4, 2005.
Court of Claims Act §11(b) requires that a Notice of Intention ". . .
state the time when and place where such claim arose, [and] the nature of same .
. . " The purpose of the Notice of Intention is to 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.
The Court notes that if the Notice of Intention was received by the Office of
the Attorney General on July 12, 2004 as described above, Claimant may have
additional time within which to effectively serve and file another Claim as
required, assuming a date of accrual of April 29, 2004.
Nonetheless, since it has not been shown that Claim Number 110480-A was served
by certified mail, return receipt requested as required, the Court does not,
therefore, have jurisdiction, and Claim Number 110480-A is hereby dismissed.
The other grounds raised by Defendant for dismissal are rendered moot by this