4,5 Filed Papers: Claim, Answer
After carefully reviewing the papers issued and submitted and the applicable
law the Order to Show Cause is resolved as follows:
Initially, the Court is satisfied that Claimants were duly served with a copy
of the Order to Show Cause, issued by the Court after its review of the Claim
and Answer herein, by service upon Counsel of record.
In the claim Claimants allege that on December 16, 2004 they were involved in a
motor vehicle collision with a State owned vehicle driven by an employee
operating the vehicle in the course of his employment, and suffered serious
injury. The Affidavit of Service accompanying the Claim indicates that it was
served on the Office of the Attorney General personally on August 10, 2005, by
delivery to "Cynthia Bogardus, Legal Records Manager" at the Attorney General's
Office in Albany, New York. The Claim was filed in the Office of the Chief
Clerk of the Court of Claims on August 11, 2005.
Assuming an accrual date of December 16, 2004 - the date of the alleged
accident - no Notice of Intention to File a Claim or Claim was served upon the
Attorney General within ninety (90) days of accrual of the claim nor was the
Claim filed in the Office of the Chief Clerk of the Court of Claims within
ninety (90) days of accrual. See Court of Claims Act §§10(3);
11(a)(i). Additionally, delivery does not appear to have been made to either the
Attorney General, or an Assistant Attorney General, as required to effectuate
personal service upon the State of New York. See Civil Practice Law and
In his Affirmation, Counsel for the Claimants asks that the Court not dismiss
the case and "afford the Garcias their day in court to litigate this meritorious
action;" indicating that "the State had almost immediate notice of the essential
facts and had a full and complete opportunity to investigate . . . [and] would
not be prejudiced should the court exercise its discretion and allow the case to
proceed." [Affirmation by David L. Engelsher, ¶3]. The submission
continues with arguments that would be appropriate were this an application to
serve and file a late claim, but does not address the issue of jurisdiction
raised in the Order to Show Cause, and further addressed in the submission by
the Assistant Attorney General.
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. A 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).
Court of Claims Act §11(a) requires that any Notice of Intention, as well
as 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.
Service is complete when it is received in the Attorney General's Office. Court
of Claims Act §11(a)(i). As noted, personal service is accomplished by
service upon the Attorney General or an Assistant Attorney General. Civil
Practice Law and Rules §307.
Failure to properly serve and file a claim within the limitations period are
fatal jurisdictional defects requiring dismissal. Philippe v State of New
York, 248 AD2d 827(3d Dept 1998). Defenses based upon lack of proper service
and untimeliness may be waived pursuant to Court of Claims Act §11(c).
Here, however, the Defendant raised the issue with particularity in its Answer
in a First Affirmative Defense. With respect to the independent jurisdictional
ground of failure to effect personal service as required, however, Defendant did
not raise the issue in its Answer and it is thus waived.
Because no Notice of Intention was ever served, there has been no toll of the
limitations period with respect to service of the Claim itself. Service of the
claim was completed on August 10, 2005, well after expiration of the limitations
Although Counsel for Claimants refers to some of the pertinent law concerning
service and filing of a late claim, no cross-motion for permission to serve and
file a late claim is properly before the Court, thus the issue has not been
considered. See Court of Claims Act §10(6). The motion for late
claim relief must be timely brought in order to allow that a late claim be
served and filed ". . . at any time before an action asserting a like claim
against a citizen of the state would be barred under the provisions of article
two of the civil practice law and rules . . ." See id. Here, the
applicable statute of limitations is three (3) years from the date of accrual of
December 16, 2004. §214 Civil Practice Law and Rules.
Claimants have failed to establish that the Attorney General was timely served
with a Notice of Intention, and have failed to establish that the Attorney
General was timely served with a copy of the claim as required by Court of
Claims Act §11(a). Accordingly, Claim Number 111244 is hereby dismissed in
its entirety for a lack of jurisdiction.