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
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
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 ). 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.
Thus, the claim is
jurisdictionally defective and must be dismissed (Lichtenstein v State of New
, 93 NY2d 911 ; Ivy v State of New York
, 27 AD3d 1190
Based upon defendant’s motion and the absence of any contrary evidence by
the claimant, the motion is granted and the claim is hereby