New York State Court of Claims

New York State Court of Claims

RICHTERS v. THE STATE OF NEW YORK, #2006-032-036, Claim No. 107942, Motion No. M-71197


Synopsis



Case Information

UID:
2006-032-036
Claimant(s):
CLARK RICHTERS and TAMMY RICHTERS
Claimant short name:
RICHTERS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107942
Motion number(s):
M-71197
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Mitchell H. Spinac, Esq.
Defendant’s attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Glenn C. King, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
May 1, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves this Court to dismiss the claim for lack of subject matter jurisdiction. Specifically, defendant argues that claimants failed to timely serve and file their claim within 90 days of the accrual date. In opposing this relief, claimants argue that they served a timely notice of intention and, therefore, the time period by which they could serve and file their claim was extended.

Claimants allege that on November 20, 2002, claimant Clark Richters tripped and fell on a sewer grate on Route 9W in the Town of Ulster. Claimants served and filed a claim on June 27, 2003. Court of Claims Act § 10 (3) provides that negligence claims against the State must be "filed and served upon the [A]ttorney [G]eneral within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the [A]ttorney [G]eneral a written notice of intention to file a claim" (id). Failure to comply with this jurisdictional requirement is fatal to the claim (see Carter v State of New York, 284 AD2d 810 [3d Dept 2001]; Conner v State of New York, 268 AD2d 706 [3d Dept 2000] ). Service upon the Attorney General may be made through either personal service or mail. "Service by certified mail, return receipt requested, upon the [A]ttorney [G]eneral shall not be complete until the claim or notice of intention is received in the office of the [A]ttorney [G]eneral" (Court of Claims Act § 11(a)(i)). Next, it is well settled that a claim accrues for purposes of the Court of Claims Act when the injury is suffered (see Konigsberg v State of New York, 256 AD2d 982 [3d Dept 1998].

Here, the accident occurred on November 20, 2002, and claimants did not serve and file a claim until June 27, 2003. Although claimants allege that they served a notice of intention, defendant denies that service was received, and claimants' submissions recite that service of the notice of intention was attempted by mailing the Attorney General at the address of the Court of Claims. Inasmuch as service upon the Attorney General is not completed until it is received by the Attorney General, and service was not received by the Attorney General because claimants mailed service to an incorrect address, claimants failed to comply with the jurisdictional requirements of the Court of Claims Act (Court of Claims Act §§ 10 (3); 11). Thus, the claim must be dismissed.

Accordingly, defendant's motion M-71197 is granted and Claim No. 107942 is dismissed.



May 1, 2006
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


Papers Considered:


1. Notice of Motion filed January 19, 2006;

2. Affirmation of Glenn C. King dated January 13, 2006; Exhibits A-C annexed;

3. Affirmation of Mitchell H. Spinac filed February 8, 2006; with attachments;

4. Reply Affirmation filed February 14, 2006; Exhibits A-B annexed.