New York State Court of Claims

New York State Court of Claims

FERNANDEZ v. THE STATE OF NEW YORK, #2005-030-538, Claim No. 110288, Motion Nos. M-69751, CM-70067


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
June 24, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 7 were read and considered on Claimant's motion to strike defenses and on Defendant's cross-motion to dismiss the claim:
1,2 Notice of Motion; Affidavit in Support by Juan Fernandez, Claimant

3,4 Notice of Cross-Motion; Affirmation in Opposition to Motion and in Support of Cross-Motion by Barry Kaufman, Assistant Attorney General and attached exhibits

  1. Letter to Court by Juan Fernandez in further support of motion and in opposition to cross-motion dated May 2, 2005
6,7 Filed Papers: Claim, Answer After carefully reviewing the papers submitted and the applicable law the motions are disposed of as follows:

Juan Fernandez alleges in Claim Number 110288 that Defendant's agents allowed a dangerous condition to exist at the basketball court at the Green Haven Correctional Facility recreation yard, resulting in his physical injury on or about October 22, 2002, and also failed to provide him with adequate medical care thereafter. In its Answer, in addition to general denials, the Defendant asserts thirteen affirmative defenses, including the defense that the Court lacks subject matter jurisdiction because the claim was untimely served, and lacks personal jurisdiction over the Defendant because the claim was improperly served.
Defendant's cross-motion to dismiss
This motion is addressed first because it disposes of the Claim. In his affidavit in support of his motion, Claimant indicates that he served a Notice of Intention to file a claim by certified mail, return receipt requested on January 21, 2003, premised upon a date of accrual of October 22, 2002. [Affidavit in Support by Juan Fernandez, ¶6]. He states that such service was within the ninety (90) day period required for the service of a Notice of Intention and, by implication, argues that therefore the time period within which the actual claim must be served and filed was extended from ninety (90) days to two (2) years from the date of accrual. [See Court of Claims Act §§10(3) and 11].

The Notice of Intention - apparently served by the proper means - was served within ninety (90) days after the accrual of the claim, and thus operated to extend the time period within which to serve and file a claim. [Court of Claims Act §10(3)]. The Claim was not served upon the Attorney General until December 15, 2004, and was not filed with the Clerk of the Court until December 30, 2004. The Court does not have subject matter jurisdiction and the claim must be dismissed on this ground alone, because the claim was not served and filed within two (2) years of accrual. The issue is properly preserved in Defendant's second affirmative defense, and Defendant has made a timely cross-motion, thus there has been no waiver. Court of Claims Act §11(c).

Additionally, Defendant avers that the claim was served upon the Office of the Attorney General by regular mail, rather than personally, or by certified mail, return receipt requested as required. Court of Claims Act §11. A copy of the envelope in which the Claim was received by the Attorney General's Office, showing that it was mailed with postage in the amount of $.60, and with no indicia that it was mailed by certified mail, return receipt requested, is appended to Defendant's moving papers. [Affirmation in Opposition to Motion and in Support of Cross-Motion, Exhibit 4].

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 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)(i) 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)(i). 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 the 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).

Here, the Claimant has not established that he served the Claim upon the Attorney General as required, and the Defendant has also raised this jurisdictional issue in its Answer and 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, Defendant's Cross-Motion number CM-70067 is hereby granted in its entirety, and Claim Number 110288 is hereby dismissed because this Court lacks both jurisdiction over the claim and personal jurisdiction over the Defendant.

Claimant's Motion number M-69751 to strike defenses is denied as moot, given the Court's dismissal of the claim.

June 24, 2005
White Plains, New York

Judge of the Court of Claims