Claimant commenced this action seeking recovery for medical malpractice which
allegedly occurred while he was in the custody of the Department of Correctional
Services (DOCS). Claimant alleges that he underwent prostate surgery at Albany
Medical Center on June 30, 2005, and that this claim accrued on October 25, 2005
when he discovered that he was experiencing erectile dysfunction and reverse
ejaculation as a result of the surgery.
Defendant State of New York (defendant) now moves to dismiss the claim on the
ground that it is untimely. Claimant opposes the motion. In an action to
recover for damages caused by the negligence of an officer or employee of the
State, the claim must be filed with the Clerk of the Court and served upon the
Attorney General within 90 days after the accrual of the claim, unless a notice
of intention to file a claim is served upon the Attorney General within 90 days
after the accrual of such claim (Court of Claims Act § 10 ). Court of
Claims Act § 11 (a) further requires that service on the Attorney General's
office be made either personally, or by certified mail, return receipt
Claimant, proceeding pro se at that time, served a “Notice of Intention
to File A Claim” on the office of the Attorney General on December 12,
2005. However, defendant has included in its motion papers a copy of the
envelope which has postage of only $0.37 (clearly less than that required for
certified mail, return receipt requested) and which is also completely devoid of
any indication that it was sent certified mail, return receipt requested.
Moreover, claimant has not provided a copy of a receipt or return
Claimant provides his affidavit in opposition to defendant’s motion, and
attempts to explain the absence of either a receipt or return postcard.
Claimant states that he is familiar with the filing requirements of the Court of
Claims Act and always utilizes certified mail, return receipt requested when
filing claims. Claimant avers that he filed this “claim” by
certified mail, return receipt requested, and that he specifically recalls
receiving a return postcard because a name was scribbled in the “received
by” box rather than the postcard being stamped “received.”
Claimant states that he has been moved several times while in DOCS’
custody, and speculates that because neither he nor counsel has possession of
the postcard, it must have been lost during his transfer between correctional
Notwithstanding claimant’s alleged familiarity with the Court of Claims
Act, he mistakenly states that on prior occasions he has filed several
“notices of claim” with the Attorney General, rather than having
served notices of intention to file claims upon the Attorney
General. Furthermore, claimant states that “[t]he claim herein was filed
in the same way,” but he completely fails to address service of the Notice
Based upon the evidence in the record, claimant has failed to meet his burden
of establishing proper service of the Notice of Intention on the Attorney
General (Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d
687 ; Hopkins v Tinghino, 248 AD2d 794 ). Accordingly, the
Notice of Intention is invalid and thus did not extend the time in which to file
and serve a claim under Court of Claims Act § 10 (3) (see Fulton v State
of New York, 35 AD3d 977 , lv denied 8 NY3d 809 ).
That defect, however, would not be fatal if claimant had properly filed and
served a claim upon the Attorney General within 90 days of its accrual (Court of
Claims Act § 10 ). Accepting claimant’s allegation as true, this
claim accrued on October 25, 2005. The claim herein was filed with the Clerk of
the Court and served upon the Attorney General on May 29, 2007, clearly more
than 90 days after its accrual.
Claimant’s failure to timely file and serve this claim deprives the Court
of subject matter jurisdiction (see Lichtenstein v State of New York,
NY2d 911, 913 ; Tooks v State of New York,
40 AD3d 1347 ).
Accordingly, defendant’s motion is granted and Claim No. 113755 is
1) Notice of Motion filed on June 25, 2007; Affidavit of Michael C. Rizzo, AAG,
sworn to on June 20, 2007, and attached Exhibits 1 and 2.
2) Affirmation in Opposition of Donna Maria Lasher, Esq., dated August 7, 2007,
and attached Affidavit of Vincent Antonucci sworn to August 6, 2007.
Filed papers: Claim filed on May 29, 2007.