Defendant State of New York (“defendant”) moves to dismiss this
claim on the grounds that it was neither properly nor timely filed and served
pursuant to the provisions of the Court of Claims Act §§ 10 and 11.
Claimant, an inmate proceeding pro se, opposes the motion.
Claimant alleges that while he was incarcerated at Elmira Correctional
Facility, he was the victim of an assault on June 15, 2003 by another inmate.
He contends that defendant is liable for his injuries due to its negligent
supervision of the area in the facility where he was attacked.
Court of Claims Act § 10 (3) requires that in an action to recover damages
for personal injuries caused by the negligence or unintentional tort of an
officer or employee of the State, the claim must be filed with the Clerk of the
Court and served upon the Attorney General within ninety days after the accrual
of the claim, unless a notice of intention to file a claim is served upon the
Attorney General within ninety days after the accrual of such claim. Court of
Claims Act § 11 (a) requires that service on the Attorney General's office
be made either personally, or by certified mail, return receipt requested.
Claimant served a “Notice of Intention to File A
on the office of the Attorney
General on August 14, 2003, via certified mail, return receipt requested. This
Notice of Intention was not verified. Claimant subsequently served a claim on
the office of the Attorney General on March 12, 2004 by regular
In support of its motion, defendant
offers a photocopy of the original envelope, which clearly was sent regular
mail, with postage of $.60. Claimant's affidavit of service also indicates that
the claim was sent regular mail, rather than certified, return receipt
Claimant acknowledges his errors in failing to verify the Notice of Intention
and in sending the Claim by regular mail. He asserts that these errors are
be overlooked by the Court in the interests of justice. He also argues that
defendant had an obligation to notify him within 24 hours of the lack of
verification, citing CPLR 3022.
Claimant misapprehends the rigid requirements of the law when suing the State,
however. “Because suits against the State are allowed only by the State's
waiver of sovereign immunity and in derogation of the common law, statutory
requirements conditioning suit must be strictly construed” (Dreger v
New York State Thruway Auth., 81 NY2d 721, 724 ).
Claimant's failure to verify the Notice of Intention no longer renders it
jurisdictionally defective (see Lepkowski v State of New York,
1 NY3d 201
), and its proper service extended the deadline for filing and serving the
claim until June 15, 2005 (see
Court of Claims Act § 10
While claimant timely filed the claim
on March 15, 2004, mail service of the claim by any means other than certified
mail, return receipt requested, is insufficient to acquire jurisdiction over the
State. Defendant's properly pleaded jurisdictional defense of improper service
is valid and dispositive of this action (see
Court of Claims Act §
11 [c]; Philippe v State of New York,
248 AD2d 827 ).
Defendant’s motion to dismiss is granted and, accordingly, Claim No.
109042 is hereby dismissed.
2) Affidavit of Kai Kirby sworn to October 2, 2006, in support [sic] of the
Filed papers: Claim filed March 15, 2004; Verified Answer filed April 9, 2004.