New York State Court of Claims

New York State Court of Claims

FINKELSTEIN v. THE STATE OF NEW YORK, #2006-030-510, Claim No. 109396, Motion No. M-69850


Case Information

STEVEN FINKELSTEIN The caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
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 6 were read and considered on Defendant's motion

to dismiss:

1,2 Notice of Motion; Affirmation in Support of Motion to Dismiss by Saul Aronson, Assistant Attorney General and attached exhibits

  1. Affirmation in Opposition by Jordan D. Glass, Counsel for Claimant and attachments
  1. Affirmation in Opposition to Motion to Late File (sic) by Belinda A. Wagner, Assistant Attorney General
5,6 Filed Papers: Claim, Answer

In Claim Number 109396, Steven Finkelstein attaches a list[1] 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 jurisdiction.

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 requested.

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.

February 9, 2006
White Plains, New York

Judge of the Court of Claims

[1] Claimant apparently assumes that the two (2) page attachment to the claim substitutes for a description stating ". . . the time when and place where such claim arose, the nature of same . . ." See Court of Claims Act §11 (b); 22 NYCRR §206.6.