New York State Court of Claims

New York State Court of Claims

GARCIA v. THE STATE OF NEW YORK, #2006-030-508, Claim No. 111244, Motion No. M-70802


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
February 9, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 5 were read and considered on the disposition of the

Court's Order to Show Cause marked returnable December 16, 2005:

  1. Order to Show Cause dated October 11, 2005
  1. Affirmation by Dian Kerr McCullough, Assistant Attorney General dated November 14, 2005
  1. Affirmation by David L. Engelsher, Attorney for Claimants dated December 5, 2005 and attached exhibits
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 Rules §307.

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.[1]

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 period.

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.

February 9, 2006
White Plains, New York

Judge of the Court of Claims

[1] Notably, although the subject is not discussed by Claimants' Counsel, it appears that a Notice of Intention to File a Claim was erroneously served upon the Office of the Chief Clerk of the Court of Claims on January 27, 2005. See Affirmation by David L. Engelsher, Exhibits G and H.