New York State Court of Claims

New York State Court of Claims

BUTLER v. THE STATE OF NEW YORK, #2007-015-225, Claim No. 113458, Motion No. M-73343


Court denied inmate's motion for an order deeming defense regarding improper service "moot or harmless." Court also denied as unnecessary alternative request to treat notice of intention as a claim as time remained for the service of the claim.

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:
Ricky Butler, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 17, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, moves for an order deeming the defendant's third defense asserting improper service of the claim "moot or harmless" or, in the alternative, to treat the properly served notice of intention to file a claim as a claim pursuant to Court of Claims Act §10 (8). The claim, which was served upon the Attorney General by regular mail on March 16, 2007, sets forth a cause of action for negligence arising out of the defendant's alleged failure to protect the claimant from a foreseeable assault by another inmate. The assault allegedly occurred on November 29, 2006 at Great Meadow Correctional Facility and it is undisputed that a notice of intention to file a claim was properly and timely served on February 20, 2007 (see defendant's counsel's affirmation in opposition at par. 4). As a result, the defendant opposes the claimant's motion as unnecessary, conceding that there remains time to properly serve the claim upon the Attorney General.

Court of Claims Act § 11(a)(i) 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]).

As the proof presented by the defendant establishes that the claim was, in fact, served by regular mail claimant's request to deem the error in serving the claim moot or harmless must be denied[1]. However, as correctly noted by defense counsel, time remains for the claimant to properly serve the claim upon the Attorney General. Court of Claims Act § 10 (3) provides that a claim for personal injuries caused by the negligence of the State shall be filed and served upon the Attorney General within ninety days after the accrual of the claim "unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim". Claimant's service of the notice of intention to file a claim extended his time to file and serve the claim until two years after the date the claim accrued. As a result, there remains time for the claimant to properly serve the claim upon the Attorney General[2].

Accordingly, the claimant's motion is denied.

August 17, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

  1. "Affirmation and Motion" of Ricky Butler sworn to April 9, 2007;
  2. Affirmation of Michael T. Krenrich dated June 12, 2007 with exhibits.

[1].Notably, defendant did not cross-move to dismiss the claim for improper service.
[2]. Although the claimant alleges that he re-served the claim upon the Attorney General by "certified mail" on April 9, 2007, he failed to submit any proof such as an affidavit of service to support this allegation.