New York State Court of Claims

New York State Court of Claims

FROST v. THE STATE OF NEW YORK, #2007-015-190, Claim No. 110882, Motion No. M-73052


Defendant's motion to dismiss claim for failure to serve the Attorney General was granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Joshua Frost, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 22, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion to dismiss this claim for failure to serve the Attorney General is granted. Claimant alleges that he was the victim of a sexual assault by Correction Officer Boltja on April 19, 2005 while incarcerated at Washington Correctional Facility. The claim, which did not include an affidavit of service, was filed in the Court of Claims on May 13, 2005. In support of its motion to dismiss, the defendant submitted an affidavit from Janet A. Barringer, Senior Clerk at the Albany Office of the Attorney General, in which she states that on May 5, 2005 the Attorney General received by certified mail, return receipt requested, a notice of intention to file a claim relating to this incident. Ms. Barringer states the Attorney General received a copy of a letter dated May 27, 2005 from the Court of Claims, which was directed to the claimant, acknowledging the receipt of the claim. Based upon her search of the files maintained in the Attorney General's office, Ms. Barringer states that there is no record this claim was ever served on the Attorney General. In opposition to the defendant's motion, the claimant states in a letter that the staff at Washington Correctional Facility withheld his outgoing mail but offers no supporting proof that he requested the claim be served by certified mail, return receipt requested, or that his account was debited for the cost of such service (cf. Wattley v State of New York, 146 Misc 2d 968 [1990]).

Court of Claims Act § 11(a) provides, in relevant part, that a copy of the claim "shall be served upon the attorney general...either personally or by certified mail, return receipt requested...". This requirement is jurisdictional in nature and, as such, must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722 [1989]; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687 [2000]).

The defendant established that the claimant failed to comply with the requirements of Court of Claims Act § 11(a) with respect to service of the claim upon the Attorney General. Although the claimant did properly serve a notice of intention to file a claim, the time within which to serve the claim has now expired (see Court of Claim Act § 10[3-b]). Accordingly, the claim is dismissed.

May 22, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated March 13, 2007;
  2. Affirmation of Belinda A. Wagner dated March 13, 2007 with exhibit;
  3. Affidavit of Janet A. Barringer sworn to March 13, 2007 with exhibits;
  4. Letter from Joshua Frost dated March 26, 2007.