New York State Court of Claims

New York State Court of Claims

LAUREANO v. THE STATE OF NEW YORK, #2007-044-550, Claim No. 112994, Motion No. M-73273


After previously granting claimant's motion for permission to file a late claim regarding inmate's conscious pain and suffering prior to his death, court dismisses claim for improper service by regular mail.

Case Information

MARISOL LAUREANO, as Administratrix of the Estate of SILVERIO DELRIOS, Deceased
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:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 20, 2007

Official citation:

Appellate results:

See also (multicaptioned case)

After receiving permission to late file (Laureano v State of New York, Ct Cl, Sept. 25, 2006, Schaewe, J., Claim No. None, Motion No. M-72073 [UID # 2006-044-502]), claimant filed this claim seeking recovery for the conscious pain and suffering that her brother, Silverio Delrios (decedent), allegedly experienced prior to his death while incarcerated at Elmira Correctional Facility (Elmira). Defendant answered and asserted various affirmative defenses. Defendant now moves to dismiss the claim, arguing that it was improperly served by regular mail. Claimant has not responded.[1] By decision and order dated September 25, 2006, the Court granted claimant permission to late file a claim for a cause of action for the conscious pain and suffering of the decedent, solely with respect to a cause of action in negligent supervision (id.). The Court specifically authorized claimant to “file a claim and serve a copy of the claim upon the Attorney General within sixty (60) days from the date of filing of this decision and order in the Office of the Clerk of the Court. The service and filing of the claim shall be in conformity with all applicable statutes and rules of the Court” (id., at 7).
The decision and order was filed with the Clerk of the Court on September 28, 2006 and thus the filing of this claim on November 9, 2006 is timely. However, Court of Claims Act
§ 11 (a) also provides that a copy of the claim shall be served upon the Attorney General either personally or by certified mail, return receipt requested. Defendant has included a copy of the envelope it received containing the claim, which has postage of only $0.78 (considerably less than that required for certified mail, return receipt requested) and which is completely devoid of any indication that it was sent certified mail, return receipt requested. Moreover, the “affirmation” of service[2] filed with the claim indicates that it was served on the Attorney General’s Office on November 6, 2006 by first class mail. Based upon the evidence in the record, claimant has failed to meet her burden of establishing proper service of the claim on the Attorney General. The service requirements set forth in Section 11 of the Court of Claims Act are jurisdictional in nature and must be strictly construed (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]).
Defendant's properly pleaded jurisdictional defense of improper service is valid and dispositive of this action (see Court of Claims Act § 11 [c]; Philippe v State of New York, 248 AD2d 827 [1998]).[3]
Claim No. 112994 is therefore dismissed in its entirety.
June 20, 2007
Binghamton, New York
Judge of the Court of Claims
The following papers were read on defendant’s motion to dismiss:
1) Notice of Motion filed on April 26, 2007; Affirmation of Carol A. Cocchiola, AAG, dated April 24, 2007, and attached Exhibits A and B.
Filed papers: Claim filed on November 9, 2006; Verified Answer filed on December 18, 2006.

[1]. By letter erroneously dated January 23, 2007 (as the motion was filed April 26, 2007) and faxed to the Court on May 8, 2007, counsel for claimant requested a one-week adjournment of this motion originally returnable on May 9, 2007. The Court adjourned the motion until May 23, 2007, but has received no further correspondence.
[2]. The document, prepared for Attorney Edward W. Miller’s signature, was never signed.
[3]. Claimant is also precluded from again requesting permission to file a late claim. Pursuant to Court of Claims Act § 10 (6), a motion to file a late claim is timely if it is made “before an action asserting a like claim against a citizen of the state would be barred under the provisions of [CPLR article 2].” A cause of action for negligent supervision must be brought within three years of its accrual (CPLR 214 [5]). Because claimant’s cause of action accrued on October 8, 2003 (when decedent died in custody) another motion for permission to file a late claim would now be untimely.