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,
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 ). 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
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 ; Ivy v State of New York, 27 AD3d 1190
Therefore, based on the foregoing defendant’s motion is granted and the
claim is hereby dismissed.