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). 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.
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
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.