5,6 Filed Papers: Claim, Answer
In Claim Number 109396, Steven Finkelstein attaches a
of intentional or negligent acts or
omissions by Defendant's agents at various correctional facilities - for a
period from March 26, 2003 to December 24, 2003 - and describes his claim as a
"Civil Rights action under Sect. 1983 . . ." The individual acts recited in the
two (2) page attachment to the claim, include failure to provide medication,
medical and dental care, denial of food, denial of attendance at services,
issuance of false disciplinary tickets, and wrongful confinement, among others.
The claim does not allege a date of accrual, but indicates that it is filed
within ninety (90) days of his release from prison. It does not allege that a
Notice of Intention to file a claim was ever served on the Attorney General's
Office, nor is there an affidavit of service indicating how the claim was served
on the Attorney General's Office.
The claim was filed in the Office of the Chief Clerk of the Court of Claims on
May 25, 2004. In a letter filed with the Claim the writer indicates "I have . .
. enclosed a fax copy of the original claim with a stamped receipt from the
Attorney General['s] Office . . ." Viewing the copy of the Claim filed with the
Clerk, there is a stamp on it indicating "MANAGING ATTY'S OFC. NYSOAG -
RECEIVED" dated May 25, 2004. As noted above, no Affidavit Service was filed
with the Clerk. See 22 NYCRR §206.5.
In its Answer, in addition to general denials, the Defendant asserts
twenty-three (23) defenses, including a failure to state a cause of action
against the State of New York, and a lack of personal and subject matter
The present motion seeks dismissal of the claim because it is untimely, and
because the Court lacks subject matter jurisdiction over the claim.
The most generous reading of the claim would allow a date of accrual of
December 24, 2003, the latest date alleged in the attachments to the claim.
Claimant alleges that on or about that date he "was given a Menorah and candles
to light each night of Chanukah. On the 7th night, which was also Christmas
Eve, I was told if I light candles I would be sent to the Upstate Box (solitary
confinement) because if I ‘dare to desecrate Jesus on Christmas Eve'."
Assuming this states actionable conduct under negligence or other theories, any
claim or Notice of Intention to file a claim would have to have been served and
filed within ninety (90) days of December 24, 2003. Clearly, the claim served
and filed here - on or about May 25, 2004 - was filed well after that time
period. See Court of Claims Act §§10(3) and (3-b); 11(a)(i).
Moreover, although the claim is stamped as received in the Attorney General's
Office on May 25, 2004, no affidavit of service attests to either personal
service or service by certified mail, return receipt requested as required.
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], nor is
there any indication that the claim was served by certified mail, return receipt
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 and timely 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 issues with particularity in its Answer,
and therefore the claim is dismissed on these grounds alone.
Additionally, based upon Claimant's assertion that his claim is a civil rights
action, it is also dismissed as outside the jurisdiction of this Court.
See Court of Claims Act §9. It is axiomatic that the Court of
Claims, a Court of limited jurisdiction, that may only exercise jurisdiction in
cases or controversies for money damages in which the State is a party. The
present claim - according to Claimant - is based upon a violation of the Federal
Constitution, and would be pursued pursuant to 42 USC §1983. No cause of
action against the State of New York exists for alleged violations of an
individual's rights under the United States Constitution [See Welch v
State of New York, 286 AD2d 496, 498 (2d Dept 2001); Zagarella v State of
New York, 149 AD2d 503 (2d Dept 1989; Davis v State of New York, 124
AD2d 420,423 (3d Dept 1986)], in that the State is not a "person" amenable to
suit pursuant to 42 USC §1983.
Although Counsel for Claimant 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, because so
many different purported underlying causes of action are referred to, including
medical malpractice, negligence and intentional tort, what statute of
limitations is applicable with regard to making a late claim motion is unclear.
In any event, even assuming that the application for late claim relief could be
considered, Claimant has not addressed the bulk of the factors that are required
to be addressed in order for the Court to consider an application for permission
to serve and file a late claim. See Court of Claims Act §10(6).
Accordingly, Defendant's Motion to Dismiss [M-69850] is granted and Claim
Number 109396 is hereby dismissed in its entirety.