New York State Court of Claims

New York State Court of Claims

MYERS v. STATE OF NEW YORK, #2007-039-032, Claim No. 111029, Motion No. M-73177


Synopsis


Defendant’s motion to dismiss the claim on the ground that the Court lacks subject matter jurisdiction because the claim was not timely served by certified mail, return receipt requested, as required by Court of Claims Act § 11 9a) (i), is granted. The claim is alleged to have accrued on July 22, 2003, and the claim was not served upon the Attorney General by certified mail, return receipt requested, until August 10, 2005. Moreover, although claimant’s initial attempt to served his claim upon the Attorney General was timely, it was not done in the proper manner.

Case Information

UID:
2007-039-032
Claimant(s):
GREGORY MYERS
Claimant short name:
MYERS
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111029
Motion number(s):
M-73177
Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Brecher, Fishman, Pasternack, Heller, Walsh & Tilker, P.C.By: Vincent L. Gonzalez, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Kevan J. ActonAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 26, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate at Upstate Correctional Facility, served a notice of intention to file a claim (hereinafter “notice”) upon the Attorney General of the State of New York (hereinafter “Attorney General”) on or about October 8, 2003. On July 12, 2005, the claim was served upon the Attorney General by regular mail. The claim provides, among other things, that on July 22, 2003 claimant sustained injuries when he was caused to slip and fall in the mess hall of the correctional facility due to the State’s (hereinafter “defendant”) negligence in permitting the floor to remain wet and greasy. On August 10, 2005, the claim was reserved upon the Attorney General by certified mail, return receipt requested. Issue was joined, and defendant raised an affirmative defense in its answer that “[t]he Court lack[s] jurisdiction of the claim as [it] was not timely served on the Office of the Attorney General in the form required by the Court of Claims Act, i.e., certified mail return receipt requested.”

Defendant now moves the Court for an order dismissing the claim on the ground that the Court lacks subject matter jurisdiction because the claim was not timely served by certified mail, return receipt requested, as required by Court of Claims Act § 11 (a) ( i). Claimant opposes the motion and argues, among other things, that the manner of service is a technicality, and that defendant waived any objection to the manner of service when it failed to admit or deny in its answer that portion of the claim that states that the claim was filed within two years of its accrual.

The Court finds that the claim was not served upon the Attorney General in compliance with Court of Claims Act § 11 (a) ( i), and that the claim must therefore be dismissed. Court of Claims Act § 11 (a) ( i) provides, in relevant part, that
“The claim shall be filed with the clerk of the court; and . . . a copy shall be served upon the attorney general within the times hereinbefore provided for filing with the clerk of the court either personally or by certified mail, return receipt requested . . . Any notice of intention shall be similarly served upon the attorney general within the times hereinbefore provided for service upon the attorney general. Service by certified mail, return receipt requested, upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general.”

“The Court of Appeals has noted in interpreting the above provision that ‘statutory requirements conditioning suit must be strictly construed’ ” (Rodriguez v State of New York, 307 AD2d 657 [2003], quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). “Indeed, the failure to comply with the statute’s certified mail requirement deprives the Court of Claims of subject matter jurisdiction and mandates dismissal” (Rodriguez v State of New York, supra).

Initially, the Court notes that defendant properly preserved its objection to the timeliness and manner of service by raising the defense, with particularity, in its answer (see Court of Claims Act § 11 [c]). As to the merit of the defense, the Court further notes that claimant served his notice upon the Attorney General within 90 days of the accrual of the claim. Accordingly, the claim was required to have been filed and served upon the Attorney General, as is relevant here, either personally or by certified mail, return receipt requested, “within two years after the accrual of such claim” (see Court of Claims Act §§ 10 [3], 11 [a] [ i]. However, claimant did not serve his claim upon the Attorney General in the proper manner until after expiration of the requisite two-year period. The claim is alleged to have accrued on July 22, 2003, and it is undisputed that the claim was not served upon the Attorney General by certified mail, return receipt requested until August 10, 2005. Moreover, although claimant’s initial attempt to serve his claim upon the Attorney General was timely, it was not done in the proper manner.

Accordingly, it is hereby ordered that M-73177 is granted and the claim is dismissed.


July 26, 2007
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:

  1. Notice of Motion to Dismiss dated April 4, 2007;
  1. Affirmation in Support of a Motion to Dismiss affirmed on April 4, 2007 with exhibit;
  1. Affirmation in Opposition affirmed on May 14, 2007 with exhibits; and
  1. Affirmation in Response affirmed on May 17, 2007.