2. Affidavit in Opposition (none received)
Filed papers: Claim; Answer
This claim arose on December 16, 2003 at Mid-State Correctional Facility.
Claimant, who was an inmate of the facility at that time, alleges that he was
struck in the chest by a Correction Officer as he was attempting to go to the
library. Defendant now moves for an order dismissing the Claim on the grounds
that it was improperly served and untimely.
Claimant initially served a copy of the Claim on the Attorney General on
February 13, 2004 (Dillon Affirmation, Exhibit A), which was within the 90 day
period following the incident (see Court of Claims Act §§10
[negligence], 10[3-b] [intentional tort]). That copy of the Claim was properly
served by certified mail, return receipt requested, but it was unverified.
Defendant elected, as was its right, to treat that document as a nullity, and it
was returned with “due diligence” on the same day that it had been
received (CPLR 3022; Lepkowski v State of New York, 1 NY3d 201, 210
; Dillon Affirmation, Exhibit C).
Thereafter, on March 17, 2004, Claimant served a properly verified claim on the
Attorney General (id. Exhibit D). This time, however, service was
effected by regular mail (id. Exhibit E). In addition, the date on which
the second claim was received was more than 90 days after the incident giving
rise to the action, making it untimely as well as improperly served.
In the Answer, Defendant preserved the defenses relating to improper service
and untimeliness with sufficient particularity to satisfy the requirement of
section 11(c) of the Court of Claims Act. Claimant has made no submission in
opposition to the instant motion.
Compliance with the time and service requirements contained in the Court of
Claims Act is a jurisdictional prerequisite to commencing an action in this
Court (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ;
Rodriguez v State of New York, 307 AD2d 657 [3d Dept 2003]; Bogel v
State of New York, 175 AD2d 493 [3d Dept 1991]).
Defendant’s motion is GRANTED and Claim No. 108887 is DISMISSED.