Notice of Motion, Affirmation, with Exhibits 1,2
Filed papers: Claim.
Claimant has not submitted any response to this motion to dismiss his claim.
As set forth in the affirmation of defendant’s attorney (see Item 2),
this claim was served upon the Attorney General on May 8, 2006 (see Exhibit A to
Items 1, 2), and the records of this Court establish that the claim was filed
with the Clerk of the Court of Claims on the same date. Defendant’s
attorney further affirms that this claim was served by regular, first class
mail, and not by certified mail, return receipt requested as required by
Pursuant to Court of Claims Act § 10(3), a claim must be served upon the
Attorney General and filed with the Clerk of the Court of Claims within 90 days
from the date of accrual, unless within such time period a written notice of
intention to file a claim is served upon the Attorney General. If a written
notice of intention is so served, a claimant must then file and serve a claim
within two years after accrual. Furthermore, pursuant to Court of Claims Act
§ 11(a), a claim and/or a notice of intention must be served upon the
Attorney General either personally or by certified mail, return receipt
requested (Hodge v State of New York, 213 AD2d 766).
In this claim, there is no indication whatsoever that a notice of intention to
file a claim was served upon the Attorney General. In his filed claim, claimant
alleges that his claim accrued on November 11, 2005. Accordingly, the service
and filing of his claim on May 8, 2006 clearly did not occur within 90 days from
the date of accrual. The Court must therefore find that both the service and
filing of his claim were untimely pursuant to § 10(3) of the Court of
Furthermore, with regard to the means of service of the claim, defendant has
attached a copy of the envelope in which the claim was mailed to the Attorney
General (see Exhibit B to Items 1, 2), on which postage of $.63 is marked. This
amount is insufficient to cover the cost of certified mail, return receipt
requested service. There are no markings on the envelope to indicate that this
claim was to have been sent by certified mail, return receipt requested, as
required by § 11(a).
As a result, this Court must also find that service of this claim by regular
mail did not comply with the requirements of Court of Claims Act § 11(a)
and therefore is not valid.
The provisions of §§ 10 and 11 of the Court of Claims Act relating to
the time and manner of service are jurisdictional prerequisites to the
institution and the maintenance of a claim, and as such must be strictly
construed (Greenspan Bros. v State of New York, 122 AD2d 249; Phillips
v State of New York, 237 AD2d 590). This Court, therefore, does not have
the discretion to overlook defects in the time and/or manner of service of a
claim. Since the service of this claim by claimant was not timely or properly
made, the claim is jurisdictionally defective and must be dismissed.
Based on the foregoing, therefore, it is
ORDERED, that Motion No. M-71795 is hereby GRANTED; and it is further
ORDERED, that Claim No. 112316 is hereby DISMISSED.