New York State Court of Claims

New York State Court of Claims

BRYANT v. THE STATE OF NEW YORK , #2008-030-021, Claim No. 113399


Oral motion to dismiss made at trial granted. No claim served at all as required by Court of Claims Act §11(a) resulting in a lack of subject matter jurisdiction. Claim alleges inadequate medical care by correctional facility; still time to apply for late claim relief.

Case Information

1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
August 28, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


John Bryant, an inmate proceeding pro se, alleges in his claim that defendant’s agents at Sing Sing Correctional Facility failed to provide him with adequate medical care on or about February 27, 2007 by failing to provide him with appropriate medication. Trial of the matter was to have been held on August 22, 2008.

On that date the defendant orally moved to dismiss the claim asserting that the Attorney General’s Office had not been served with the claim as required by Court of Claims Act §11(a) resulting in a lack of subject matter jurisdiction. In support of the motion, counsel submitted an affidavit by Tasha Hunter-Tabron, a clerk in the Claims Bureau in the New York City Office of the Attorney General, charged with keeping track of documents served in litigation in the Court of Claims among other duties. [See Exhibit A and attached documents]. From her review, it appears that the only document pertaining to this claim that was received by the Claims Bureau was a copy of a letter from the Office of the Chief Clerk of Court of Claims to the claimant indicating that his claim had been filed with the Court on March 2, 2007, assigning a claim number, and enclosing a copy of the fee reduction order signed by the presiding judge. [Ibid.]. The letter from the Clerk also advises that if the claimant had not yet filed proof of service of the claim on the defendant he must do so immediately. [Ibid.].

The Assistant Attorney General indicated that in the files in the local White Plains Office of the Attorney General there were two additional documents as well. The first was a letter from claimant dated April 10, 2008 received by certified mail on April 15, 2008 stating that he was resubmitting his affidavit of service, but not enclosing the claim. [See Exhibit 1]. The second was a document entitled Statement of Facts that was received by the White Plains office of the Attorney General on June 5, 2008. The Court’s file also contains this additional document dated June 2, 2008.

In response, claimant testified that he thought he had served the claim by the proper means, but acknowledged that he did not serve the claim itself by certified mail, return receipt requested, but rather the affidavit of service the Clerk’s office appeared to require. Indeed in a letter to Mr. Bryant dated April 17, 2008 from the Clerk’s office the Chief Clerk writes:
“On March 31, 2008 and April 7, 2008 this office received your proof of service upon the New York State Court of Claims. Section 11 of the Court of Claims Act requires that all claims be served upon the Attorney General of the State of New York.

Please forward to this office proof that you served the above-entitled claim upon the Attorney General. Said proof may be in the form of an Affidavit of Personal Service, copies of the green certified mail cards, or a copy of the claim stamped “Received” by the Attorney General’s Office.” [Exhibit 1].

The only green card and mail receipt submitted appears to be the one reflecting certified mailing of the letter to the Attorney General’s office received in White Plains on April 15, 2008. [See Exhibit 1 attachments].

No answer appears to have been served on the claimant, or filed in the Office of the Chief Clerk of the Court of Claims.

Court of Claims Act §11(a) provides that a claim must be served personally or by certified mail, return receipt requested, upon the attorney general within the times prescribed in Court of Claims Act §10; and that service is complete when it is received in the Attorney General’s office. Court of Claims Act §11(a)(i). Court of Claims Act §10(3) requires that a claim alleging negligence or medical malpractice such as the one filed here be served and filed within ninety (90) days of its accrual. A failure to serve the claim during the time period and in the manner required results in a lack of personal jurisdiction, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. In that case, the defense is waived. Court of Claims Act §11(c).[2] Failure to serve the claim at all results in a lack of subject matter jurisdiction that is not waiveable.

The claimant has the burden of establishing proper service [Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept 1989)] by a preponderance of the evidence. See Maldonado v County of Suffolk, 229 AD2d 376 (2d Dept 1996). Regulations require that proof of service be filed with the Chief Clerk within ten (10) days of service on the defendant. 22 NYCRR § 206.5(a).

Assuming a date of accrual of February 27, 2007 as asserted in the claim, claimant was required to serve either his claim or a notice of intention to file a claim on the Attorney General’s Office within ninety (90) days or on or before May 28, 2007 by the proper means. Court of Claims Act §10(3). A notice of intention acts to extend the period within which a claim must be served and filed, provided it has been properly served and contains the required information. If Mr. Bryant had served, for example, a notice of intention to file a claim by certified mail, return receipt requested on or before May 28, 2007, claimant would have then been allowed to serve his claim by the proper means on or before February 27, 2009, and to file it with the Clerk within the same time frame.

Based on the foregoing, it appears that the claim was never served by claimant on the Office of the Attorney General, nor was a timely notice of intention to file a claim served on that office by the proper means. As noted, no answer by the Attorney General was served or filed. This has been found to be “reflective of the failure to have served the claim.” [See Dunn v State of New York, Claim No. 98551, Motion Nos. M-62308, M-62310, CM-62324 (Corbett, Jr., J., September 20, 2000)].

Even assuming that a claim was served on the Attorney General’s office by regular mail (as claimant first recalled it) or a claim was served with the affidavit of service he resubmitted in April 2008, the Court would also dismiss the claim on the ground that claimant failed to obtain personal jurisdiction over the defendant, and such grounds for dismissal have been appropriately raised. If the claim was served by regular mail, or untimely served by certified mail more than one (1) year after its accrual, then no personal jurisdiction was obtained. Court of Claims Act §11(c).

Since claimant has not established that he served the claim at all upon the Attorney General as required by Court of Claims Act §11(a), this Court does not have subject matter jurisdiction over the claim. Alternatively, since claimant has not established timely service by the proper means the Court lacks personal jurisdiction. Accordingly, defendant’s motion to dismiss, upon which decision had been reserved, is hereby granted, and Claim Number 113399 is dismissed.[3]

Let judgment be entered accordingly.

August 28, 2008
White Plains, New York

Judge of the Court of Claims

[2]. “Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, (ii) the manner of service requirements set forth in . . . [11(a)], or (iii) the verification requirements as set forth in . . . [11(b)] and [Civil Practice Law and Rules 3022] is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.”
[3]. The court cannot help but note that claimant still has time within which to make a proper application for late claim relief. A motion for permission to serve and file a late claim may be brought “. . . at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules . . .” § 10(6) Court of Claims Act. Given a date of accrual of February 27, 2007, and presuming a cause of action for medical malpractice, the time period for a late claim motion with regard to same is two years and 6 months from accrual. See Civil Practice Law and Rules §214-a. If there is in addition a negligence cause of action where the statute of limitations for other civil actions is three (3) years. See Civil Practice Law and Rules §214.