New York State Court of Claims

New York State Court of Claims

WHITE v. THE STATE OF NEW YORK, #2008-009-005, Claim No. 114463, Motion No. M-74325


Synopsis


Defendant’s motion to dismiss the claim based upon improper service of claimant’s notice of intention, resulting in untimely service of his claim, was granted.

Case Information

UID:
2008-009-005
Claimant(s):
GEORGE B. WHITE
1 1.The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
WHITE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114463
Motion number(s):
M-74325
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
GEORGE B. WHITE, Pro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Timothy P. Mulvey, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
January 29, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking an order dismissing the claim based upon untimely service.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibit 1,2


“Claimants’ (sic) Answer”, with Attachments 3

Reply Affirmation 4

In this claim, claimant seeks damages based upon allegations of medical malpractice which occurred on November 23, 2005 at Auburn Correctional Facility, where claimant was then incarcerated. According to the papers submitted by defendant (see Exhibit A, to Items 1, 2), claimant served this claim upon the Attorney General on November 15, 2007.

A claim alleging acts of negligence (including medical malpractice) against the State must be served on the Attorney General and filed with the Clerk of the Court of Claims within 90 days of accrual, unless a notice of intention to file a claim is served upon the Attorney General within such 90 day period (Court of Claims Act § 10[3]). If a notice of intention is so served upon the Attorney General, the claim must then be served and filed within two years from the date of accrual. Furthermore, Court of Claims Act § 11(a) requires that a claim or a notice of intention must be served upon the Attorney General either personally or by certified mail, return receipt requested.

In his response to this motion, claimant states that he served a notice of intention to file a claim upon the Attorney General in January, 2006, and that he concurrently filed this notice of intention with the Clerk of the Court of Claims. To confirm this contention, claimant has attached to his “Answer” a copy of a notification from the Clerk of the Court of Claims advising him that notices of intention are no longer accepted for filing in this Court.[2] Claimant also acknowledges in his “Answer” that his notice of intention was served upon the Attorney General by regular mail, and not by certified mail, return receipt requested as required by § 11(a).

The service and filing requirements of the Court of Claims Act are jurisdictional prerequisites to the institution and maintenance of a claim against the State, and therefore they must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721). Service of a notice of intention by regular mail does not comply with the requirements of Court of Claims Act § 11(a), which requires that it be served by certified mail, return receipt requested (Filozof v State of New York, 45 AD3d 1405). Therefore, such service is not valid (LaFrance v State of New York, 147 AD2d 985 lv denied 74 NY2d 614; Hodge v State of New York, 158 Misc 2d 438, affd 213 AD2d 766).

In his “Answer”, claimant states that he was unable to serve his notice of intention by certified mail, return receipt requested, as required by statute, since he did not have sufficient funds in his inmate account to cover the cost of such mailing. Claimant, however, has not provided any acceptable proof, aside from this self-serving statement, to establish that he was financially unable to comply with the service requirements of the Court of Claims Act.

As a result, the improper service of claimant’s notice of intention renders it a nullity, and claimant is therefore not entitled to the extension of time in which to serve and file a claim provided by Court of Claims Act § 10(3). The eventual service of his claim in November, 2007 is therefore well beyond the 90 day time period set forth in § 10(3), and claimant’s failure to timely serve and/or file his claim is a fatal jurisdictional defect, which cannot be ignored or cured (Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607).

Accordingly, it is

ORDERED, that Motion No. M-74325 is hereby GRANTED; and it is further

ORDERED, that Claim No. 114463 is hereby DISMISSED.


January 29, 2008
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[2]. See Chapter 466 of the Laws of 1995.