No Opposition filed
Latee Robinson alleges in claim number 114355 that on May 10, 2007 a correction
officer at Green Haven Correctional Facility, where claimant was incarcerated,
assaulted him when applying mechanical restraints in the waiting area of the
disciplinary hearing office. The claim asserts that a Notice of Intention to
File a Claim was served on August 23, 2007. [Claim Number 114355]. The
affidavit of service indicates that the claim was placed in the facility mailbox
on some unspecified date for mailing to this court and to the Attorney
General’s Office, does not specify what type of mail service was used, and
is notarized on October 9, 2007. [See ibid.].
In this pre-answer motion to dismiss, defendant moves to dismiss based upon the
claimant’s failure to timely serve a Notice of Intention to File a Claim,
and upon claimant’s subsequent failure to timely and properly serve the
claim itself. [Affirmation in Support of Motion to Dismiss by Jeane L.
Strickland Smith, Assistant Attorney General, Exhibits 1 and 2]. With regard to
the Notice of Intention, although it was properly served by certified mail,
return receipt requested it was served on September 6,
and was therefore not timely, since it
was served more than ninety (90) days after the claim’s accrual.
Court of Claims Act §10; Affirmation in Support of Motion to
Dismiss by Jeane L. Strickland Smith, Assistant Attorney General, Exhibit 1].
Counsel states that the claim itself was then served by regular mail on October
19, 2007, and was therefore both untimely and not served by the proper means.
[Court of Claims Act §§10 and 11; Affirmation in Support of Motion to
Dismiss by Jeane L. Strickland Smith, Assistant Attorney General, Exhibit 2].
Counsel also indicates that the allegations contained in the claim are
different than those contained in the notice of intention to file a claim.
. ¶4]. The court notes that the claim appended to the
defendant’s motion papers is not the same as the filed claim given claim
number 114355 by the Clerk’s office. The court cannot help but note that
in correspondence from the Chief Clerk’s office to the claimant there is
reference to four (4) different claims, numbered 114354, 114355, 114356 and
all apparently filed by this claimant.
If same were all served in some fashion on the Office of the Attorney General,
both the similarity in the numbers and in the contents of the claims might tend
Despite this confusion, claimant has not come forward on this motion with
opposition to show that the claim filed in the office of the Chief Clerk of the
Court of Claims was either timely or properly served, in the face of
defendant’s having raised the jurisdictional issue. Moreover, the claim
filed in the office of the Chief Clerk does not appear to have been timely and
properly served in any event, since a date of accrual of May 10, 2007 is
alleged, the affidavit of service does not say by what means or when the claim
was served and, given that the claim was filed in the Clerk’s office on
October 15, 2007, and the notarization of the affidavit indicating mailing of
the claim to the Clerk of the Court and to the Attorney General is dated October
9, 2007, the inference can be drawn that it was served upon the Attorney
General’s Office sometime in October 2007, by regular mail.
Court of Claims Act §11(a) requires that a notice of intention - as well
as the claim - be served upon the attorney general either personally, by
certified mail, return receipt requested, within the time prescribed in Court
of Claims Act §10. Service is complete when the documents are received in
the Attorney General’s Office. Court of Claims Act §11(a)(i). Court
of Claims Act §10(3-b) - referring to intentional torts - requires service
within ninety (90) days of accrual of the claim, as does Court of Claims Act
§10(3), referring to claims of negligence. If a notice of intention has
been properly served, with regard to intentional torts it allows service of the
claim within one (1) year of accrual, and with regard to causes of action
sounding in negligence, a claim may be served within two (2) years of accrual.
Court of Claims Act §11(b) requires that a notice of intention “. . .
state the time when and place where such claim arose, [and] the nature of same .
. . ” The purpose of the notice of intention is to put the defendant
State on notice of potential suit against it, so that it may investigate the
claim and infer a theory of liability. It also acts to extend the period within
which a claim must be served and filed, provided it has been timely and properly
served and contains the required information.
Since the notice of intention was not served within ninety (90) days of the
claim’s accrual on May 10, 2007 it did not operate to extend the time
within which the claim could be served and filed. Affirmation in Support of
Motion to Dismiss by Jeane L. Strickland Smith, Assistant Attorney General,
A failure to serve the claim as required results in a lack of personal
jurisdiction, unless the State has failed to properly plead jurisdictional
defenses or raise them by motion. In that case, the defense is waived. Court of
Claims Act §11(c).
Here the proof shown in the Court’s file is that the claim was served by
regular mail in October 2007 more than ninety (90) days after the claim accrued
on May 10, 2007. Claimant has not offered any opposition to the motion to show
that the Notice of Intention was timely served, or that the claim itself was
timely served by the proper means. The claimant has the burden of establishing
proper service [Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept 1989)] by a
preponderance of the evidence. See Maldonado v County of Suffolk,
229 AD2d 376 (2d Dept 1996). Indeed, regulations require that proof of service
be filed with the Chief Clerk within ten (10) days of service on the defendant.
22 NYCRR § 206.5(a). As noted, the affidavit of service filed with regard
to this claim is not informative as to when or how the claim was mailed.
Accordingly, since the jurisdictional issue has been raised in a timely motion,
defendant’s motion to dismiss [M-74270] is in all respects granted, and
Claim number 114355 is hereby DISMISSED in its entirety.