New York State Court of Claims

New York State Court of Claims

WOODALL v. THE STATE OF NEW YORK, #2007-045-005, Claim No. 109624, Motion No. M-73205


Synopsis



Case Information

UID:
2007-045-005
Claimant(s):
BRYAN WOODALL
Claimant short name:
WOODALL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109624
Motion number(s):
M-73205
Cross-motion number(s):

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

Signature date:
May 1, 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, Defendant’s Affirmation with annexed Exhibits A-C, Claimant’s “Reply to Defendant’s Motion to Dismiss,” Claimant’s Notice of Intention to File a Claim and Claimant’s certified mail return receipt dated February 2, 2004.

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, Bryan Woodall, a pro se inmate who currently resides at the Green Haven Correctional Facility opposes this application.

Claimant alleged in his claim that during his incarceration at the Elmira Correctional Facility on October 30, 2003 he was assaulted by another inmate while a correction officer watched and took no action to prevent the attack. Defendant contends that it was served with claimant’s notice of intention to file a claim, by certified mail, return receipt requested, on February 2, 2004. Claimant then filed his claim with the Clerk of the Court of Claims on July 19, 2004 and served the claim upon defendant by regular mail on July 23, 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 B). In response, claimant concedes that he did not serve the claim by certified mail, return receipt requested. However, claimant mistakenly argues that only the notice of intention to file a claim must be sent by certified mail, return receipt requested and not the claim.

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. Claimant states that he sent two different notices of intention to file a claim to defendant in this matter on January 20, 2004 and January 27, 2004. Claimant does, however, admit that the first notice of intention to file a claim was sent by regular mail thereby requiring the service of a second notice of intention to file a claim. Claimant submitted his certified mail return receipt as proof of service for his second notice of intention to file a claim. The return receipt shows that the document was received by defendant on February 2, 2004, ninety-five days after his claim accrued.

Court of Claims Act § 10(3) 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...” Court of Claims Act § 11(a) specifies that service upon defendant is not complete until the notice of intention or the claim is received by the Office of the Attorney General. It is clear that neither document was served within ninety days of the accrual date. Consequently, 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]).

Therefore, based on the foregoing defendant’s motion is granted and the claim is hereby dismissed.

May 1, 2007
Hauppauge, New York

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