Frank Oglesby alleges in Claim Number 107782 that Defendant’s agents
negligently allowed a faulty plumbing condition to exist in his cell at Green
Haven Correctional Facility on or about September 12, 2002, resulting in water
damage to his personal property, specifically legal transcripts and medical
records. Trial of the matter was held at Sing Sing Correctional Facility on
March 3, 2006.
As an initial matter, the Defendant moved to dismiss the claim based upon its
second defense, a lack of jurisdiction based upon Claimant’s failure to
serve the claim upon the Attorney General’s Office by certified mail,
return receipt requested. In support of this argument, Defendant provided the
manila envelope in which the Claim had been transmitted to the Attorney
General’s Office, containing an indication that it was “Legal
Mail”, and showing postage paid in the amount of $1.75. [Exhibit A].
The Affidavit of Service filed with the Claim indicates that the Claim was
served upon the Attorney General by regular mail. [See Exhibit A]. The
Assistant Attorney General acknowledged that the Claim was received by regular
mail on May 29, 2003, and the Claim is file-stamped to that effect.
[id.]. An additional affidavit of service appended to the filed
Claim concerning the service of a Notice of Intention to file a Claim upon the
Attorney General by certified mail, return receipt requested on November 29,
2002, would appear to correspond with the photocopies of a facility disbursement
request form dated December 6, 2002, and certified mail receipts pointed out by
Claimant, reflecting delivery of a document to the Attorney General’s
Office on December 12, 2002. [id.]. Additionally, the Claim
itself is sworn to on April 28, 2003: well after the dates indicated on the
proofs of service offered herein. [id.]. Finally, Mr. Oglesby had
to concede when he examined his papers that the only document he sent out on
December 10, 2002 was the Notice of Intention to file a Claim, not the Claim
itself, and that he did not serve the Claim by certified mail, return receipt
Claimant argued that his service of the Notice of Intention within ninety (90)
days of accrual of the claim, by certified mail, return receipt requested, was
enough to give this Court jurisdiction over the Claim, despite his failure to
serve the Claim either personally, or by certified mail, return receipt
requested. This is incorrect.
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); 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. 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).
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 properly raised the
jurisdictional issue in its Verified Answer. Timely and proper
of a Notice of Intention upon the
Attorney General would arguably toll the limitations period to allow for service
of the underlying claim within two years of its accrual. See
Claims Act §10(3)
. It does not remove,
however, the additional statutory requirement that the claim be served either
personally, or by certified mail, return receipt requested.
Accordingly, 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), thus this Court does not have
jurisdiction to hear the Claim. Defendant’s motion to dismiss, upon which
decision was reserved at the time of trial, is hereby granted in its entirety,
and Claim Number 107782 is in all respects dismissed.
Let judgment be entered accordingly.