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 Claimant was duly served with a copy of
the Order to Show Cause, issued by the Court after its review of the Claim
herein, by service upon Counsel of record.
Claimant alleges in Claim Number 111333 that on February 5, 2004 he was
injured when he slipped and fell while exiting his vehicle at the Palmer Road
exit of the Saw Mill Parkway in Yonkers, suffering serious injury. Claimant
alleges that a Notice of Intention to file a Claim was served on the Office of
the Attorney General on April 8, 2004. The Claim itself was filed in the Office
of the Chief Clerk of the Court of Claims on September 6, 2005. No proof of
service of the Claim on the Office of the Attorney General has been filed. No
Answer has been served or filed by the Attorney General.
Valerie Clerk, a clerk in the Claims Bureau of the New York City Office of the
Attorney General of the State of New York, indicates that one of her duties is
familiarity with the record-keeping system of that office regarding process
served, including Notices of Intention to file Claims and Claims. Her search of
the records revealed that a Notice of Intention relative to this Claimant was
upon that office on April 26, 2004.
[Affidavit by Valerie Clerk, ¶4]. Additionally, a Notice of Intention was
also served - unnecessarily - upon the New York State Department of
No Claim, however, has been served upon
the Office of the Attorney General. [id.
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).
No proof of service was filed with the Chief Clerk by Claimant, in the form of
a sworn affidavit with a notary's signature, within ten (10) days of any service
upon the Attorney General. See 22 NYCRR §206.5(a). As noted, no
Answer by the Attorney General was served or filed. This has been found to be
"reflective of the failure to have served the claim." See Dunn v State
of New York, Claim No. 98551, Motion Nos. M-62308, M-62310, CM-62324
(unreported decision signed September 20, 2000; Corbett, Jr., J.).
Accordingly, Claimant has failed to establish, by a fair preponderance of the
credible evidence, that the Attorney General was properly and timely served with
a copy of the Claim as required by Court of Claims Act §§10 and 11.
Claim Number 111333 is hereby dismissed for a lack of jurisdiction.