New York State Court of Claims

New York State Court of Claims

WOODARD v. THE STATE OF NEW YORK, #2006-009-043, Claim No. 112316, Motion No. M-71795


Synopsis


Defendant’s motion to dismiss the claim based upon improper and untimely service was granted.

Case Information

UID:
2006-009-043
Claimant(s):
ROBERT WOODARD
Claimant short name:
WOODARD
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112316
Motion number(s):
M-71795
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
ROBERT WOODARD, Pro Se
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
August 17, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has brought this pre-answer motion seeking an order dismissing the claim based upon improper and untimely service of the claim.

The following papers were considered by the Court in connection with this motion:
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 statute.

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 Claims Act.

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.


August 17, 2006
Syracuse, New York
HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims