The parties appeared for the trial of this action on March 21, 2007. At trial
the defendant moved to dismiss for failure to serve the claim in accordance with
Court of Claims Act § 11. Decision on the motion was reserved and the
trial was adjourned following the receipt of evidence from both parties
regarding service of the claim.
The claim dated February 4, 2005 asserts a cause of action which allegedly
accrued on December 27, 2004
. It was filed in
the Court of Claims on February 14, 2005 but no affidavit of service of the
claim was attached.
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,
which was received in evidence as defendant's Exhibit A together with the
exhibits attached thereto. According to Ms. Barringer the claimant served a
notice of intention to file a claim upon the Attorney General by regular mail on
January 25, 2005. The notice of intention to file a claim is annexed to the
Barringer affidavit as Exhibit B and appears to involve the same general subject
matter as is addressed in the filed claim. A second notice of intention to file
a claim, this one served by certified mail, return receipt requested, was served
upon the Attorney General on February 3, 2005 (Exhibit C). The second notice of
intention also arguably relates to the same facts and circumstances as set forth
in the claim. Finally, on February 28, 2005 the Attorney General received a
copy of correspondence addressed to the claimant from the New York State Court
of Claims acknowledging its receipt of a claim on February 14,
In opposition to the defendant's motion to dismiss this case, the claimant
submitted a certified mail receipt (Exhibit 1) and a return receipt from the
Attorney General (Exhibit 2). These documents establish that an item was sent
to the Attorney General on March 4, 2005 by certified mail, return receipt
requested and received on March 7, 2005.
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 ;
Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687
No affidavit of service or any other proof has been submitted to establish that
the claim filed on February 14, 2005 was served on the Attorney General. The
affidavit from Ms. Barringer establishes that a notice of intention to file a
different claim (not involving the facts at issue in the claim and stating an
accrual date of December 18, 2004) was served by certified mail and received on
March 7, 2005. This coincides with claimant's Exhibits 1 and 2 indicating the
receipt of certified mail by the Attorney General on March 7, 2005.
Although it appears the claimant properly served his notice of intention to
file the subject claim, which was received by the Attorney General on February
3, 2005, claimant failed to comply with the requirements of Court of Claims Act
§ 11 with respect to service of the claim itself. Claimant's failure to
effect service of the claim requires that it be dismissed.
Accordingly, for the reasons set forth above, the claim is dismissed.