New York State Court of Claims

New York State Court of Claims

SCRIVEN v. THE STATE OF NEW YORK, #2007-029-048, Claim No. 109689, Motion No. M-74213


Unlike late service or filing of a claim, or service by an improper method, both of which give rise to the defense of lack of personal jurisdiction that may be waived by failing to include it in an answer or pre-answer motion, the failure to serve the claim at all implicates subject matter jurisdiction, which need not be raised at any time by defendant and requires dismissal 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:
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Elyse Angelico, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 30, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This is defendant’s motion to dismiss the claim for lack of jurisdiction based on the allegation that claimant, an inmate in the State’s correctional system, never served a copy of the claim upon defendant as required by Court of Claims Act § 11(a).

This claim, alleging that defendant was negligent in failing to provide proper medical attention to claimant after she fell from a top bunk bed, was filed August 4, 2004. By letter dated October 2, 2007, the parties were notified that the claim would be tried on December 7, 2007. Defendant now moves, via a Notice of Motion dated and served November 16, 2007, and made returnable November 28, 2007, to dismiss for lack of jurisdiction. Claimant has not responded to the motion.

In support of the motion, defendant has submitted an affidavit from Valerie Clerk, a clerk with responsibility for and knowledge of the Attorney General’s records of claims and notices of intention. Those records show that the sole document served by claimant was a notice of intention to file a claim which was received on August 3, 2004, a copy of which is annexed to the motion papers. That document, which is different from the claim, was not signed or verified by claimant and was returned to claimant on August 4, 2004, with a letter stating that defendant was electing to treat it as a nullity pursuant to CPLR 3022. According to defendant’s submission, no other document was ever received from claimant. Thus, the court concludes that the instant claim was never served. The court also notes that the filed claim was neither signed nor verified by the claimant, as required by the Court of Claims Act.

Court of Claims Act § 11(a) requires that a claim be served on the defendant by a method authorized in the statute and within the time period prescribed by § 10. Either untimely service or service by an improper method gives rise to a defense that is waived by the failure to raise the defense in an answer or a pre-answer dismissal motion (Court of Claims Act § 11[c]; see Knight v State of New York, 177 Misc 2d 181, 183 [1998] “the primary purpose of the Legislature in enacting [§ 11(c)] was to remove the time limitations of section 10 and the service and filing requirements of section 11 from the realm of subject matter jurisdiction by making departures from the statutory requirements waivable”). Here, in contrast, the claim was not served at all, a situation not covered by § 11[c] and a defect that divests the court of subject matter jurisdiction over the claim (Dreger v New York State Thruway Auth, 81 NY2d 721 [1992]) and that may be raised at any time, even by the court sua sponte.

Although the motion was not made in accordance with the notice requirements of the CPLR, requiring at least thirteen days notice, [1] it was served twelve days prior to the return date and the court has waited two extra days in case claimant submitted opposition papers. Nothing was received from claimant and since it is clear that the court lacks jurisdiction over the claim, the court grants the motion and the claim is dismissed.

November 30, 2007
White Plains, New York

Judge of the Court of Claims

The court read and considered the following papers:

Notice of Motion, Affirmation and Exhibit.


[1].CPLR §§ 2214[b]; 2103[b][2], 2103[c].