New York State Court of Claims

New York State Court of Claims

GODWIN v. THE STATE OF NEW YORK, #2007-045-004, Claim No. 110224, Motion No. M-73204


Synopsis



Case Information

UID:
2007-045-004
Claimant(s):
ANTHONY GODWIN
Claimant short name:
GODWIN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110224
Motion number(s):
M-73204
Cross-motion number(s):

Judge:
GINA M. LOPEZ-SUMMA
Claimant’s attorney:
Anthony Godwin, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Carol A. Cocchiola, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 26, 2007
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were reviewed by the Court on this motion: Defendant’s Notice of Motion to Dismiss, Defendant’s Affirmation with annexed Exhibits A-D.

Defendant, the State of New York, has brought this motion pursuant to Court of Claims Act §§ 10 and 11 seeking an order dismissing the claim. Claimant, Anthony Godwin, a pro se inmate who currently resides at the Shawangunk Correctional Facility, has not submitted any opposition to defendant’s motion.

Claimant alleges in his claim that he was assaulted by a correction officer at “Elmira” on August 27, 2004. Defendant concedes that it was served with claimant’s notice of intention to file a claim, by certified mail, return receipt requested, on December 3, 2004. Claimant then filed his claim with the Clerk of the Court of Claims on December 15, 2004 and served the claim upon defendant by regular mail on December 24, 2004.

Defendant initially seeks dismissal of the claim based upon claimant’s failure to properly serve the claim either by personal service or by certified mail, return receipt requested as required by Court of Claims Act § 11(a)(i). Defendant argues, that as a result, the Court lacks jurisdiction over the claim. In support, defendant submitted a photocopy of the envelope in which the claim was served which evinces postage in the amount of $ .37 (see Def Exh C).

Court of Claims Act § 11(a) provides that a copy of the claim “... 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...” The filing and service requirements contained in the Court of Claims Act § 11 are jurisdictional in nature and therefore must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721 [1989]). In this case, the requirement that defendant be served in accordance with Court of Claims Act § 11 was not met as the claim was served by ordinary mail. As “the use of ordinary mail to serve the claim upon the Attorney-General is insufficient to acquire jurisdiction over the State” (Turley v State of New York, 279 AD2d 819 [3d Dept 2001]), the Court is deprived of jurisdiction.

Additionally, defendant asserts that the claim must be dismissed since neither the notice of intention to file a claim nor the claim was served within ninety days of the date claimant’s action accrued.

CCA § 10(3-b) provides in relevant part that a claim “...shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim...” Clearly, the notice of intention to file a claim and the claim were untimely served in this action.[1] Thus, the claim is jurisdictionally defective and must be dismissed (Lichtenstein v State of New York, 93 NY2d 911 [1999]; Ivy v State of New York, 27 AD3d 1190 [2006]).

Based upon defendant’s motion and the absence of any contrary evidence by the claimant, the motion is granted and the claim is hereby dismissed.[2]

April 26, 2007
Hauppauge, New York

HON. GINA M. LOPEZ-SUMMA
Judge of the Court of Claims




[1].In a letter addressed to the Attorney General’s Office dated November 30, 2004, claimant acknowledges that his notice of intention to file a claim was not mailed until November 29, 2004.
[2].Defendant also avers that the claim must be dismissed since the served claim does not contain an amount claimed for damages as required by Court of Claims Act § 11(b). However, the claim filed with the Clerk of the Court of Claims does contain a sum claimed. The Court need not address this apparent discrepancy since it has found that the claim is jurisdictionally defective on a number of other grounds.