Justin Brown alleges in his filed claim that on or about September 26, 2005 a
correction officer at Sing Sing Correctional Facility punched him in the face,
thereby using excessive force, for which the defendant should be held liable.
Trial of the matter was to have gone forward on August 22, 2008.
On that date, defendant made an oral motion to dismiss, asserting that the
Attorney General’s Office had never been served with the claim, resulting
in a lack of subject matter jurisdiction. In support of the application, the
Court was presented with documentation [see
Exhibit A] indicating that
although claimant had served a series of notices of intention to file a
he had failed to serve the claim itself
upon the Office of the Attorney General as required. No affidavit of service is
appended to the filed claim. No answer was served or filed. Claimant was unable
to show by documentary proof whether he did indeed serve the claim nor could he
recall what method of service, if any, he had used.
After some colloquy between claimant, the assistant attorney general, and the
Court, however, what was and was not served on the defendant as required was
unclear and warranted further review. Claimant was given the opportunity to
check his own records to see whether he had some proof that the claim was served
on the Attorney General’s Office.
From the Court’s review of the file, claimant served a document by
certified mail, return receipt requested, which he entitled “Notice of
Intention to file a Claim” that was received by the Attorney
General’s Office on December 29, 2005. [Exhibit A]. The notice of
intention contained an attachment with exactly the same material that was later
attached to the claim filed in this Court on February 25, 2007: Two (2) untitled
typewritten pages dated December 15, 2005 containing a narrative description of
the facts in unnumbered paragraphs that contains an ad damnum clause, a sketch
of the alleged assault, a “Request for Production of Documents”
dated November 30, 2005, and an “Affidavit in Support of Application
Pursuant to CPLR 1101” sworn to December 15, 2005 (including an
authorization for release of financial information). [See Exhibit A].
Notably, however, having served the notice of intention on the attorney general
with all the attachments in December 2005, claimant subsequently filed the
additional document he entitled “Claim” in the Office of the Chief
Clerk of the Court of Claims on February 26, 2007, with all the same
attachments as those appended to the notice of intention served in December
2005. This filing with the Clerk’s Office would tend to show
claimant’s understanding that there was a distinction between the two
documents, namely, that notwithstanding service of the notice of intention, an
actual claim would then need to be filed as well. It is not clear whether Mr.
Brown understood that the defendant had to be served with the claim in addition
to the notice of intention, but it is not his understanding that controls
whether the Court has jurisdiction. Indeed, in the filed claim Mr. Brown
attests to having served a notice of intention to file a claim in December 2005.
[See Claim No. 113378]. The letter from the Clerk’s Office to
claimant acknowledging the filing advises that if proof of service of the claim
upon the defendant had not yet been filed, claimant should file same
immediately. [Ibid.]. As noted, no affidavit of service was filed with
regard to service of the claim upon the attorney general.
As requested, claimant submitted some additional documentation by mail that was
received by this Court on September 2, 2008. The disbursement request forms and
the certified mail receipts dated, respectively, October 4, 2006 and February
26, 2007 show only that something was received in the Office of the Chief Clerk
of the Court of Claims on those dates, not that documents were served on the
Attorney General’s Office.
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). 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
Failure to serve the claim at all
results in a lack of subject matter jurisdiction that is not waiveable.
Dreger v New York State Thruway Auth.
, 81 NY2d 721 (1992).
While there is always a disinclination to dispose of matters based on what seem
to be technicalities, the situation here straddles mixed issues of personal and
subject matter jurisdiction.
The defendant who is served with a document that has been presented as a notice
of intention to file a claim - a very specific document with a specific purpose
in Court of Claims practice - is entitled to rely on the document being what it
appears to be. A notice of intention is not a
per se [see Sega v State of
, 246 AD2d 753 (3d Dept 1998), appeal denied
92 NY2d 805
(1998)], but rather serves the multiple function of alerting the defendant as to
its need to investigate the matter the notice addresses, and of affording a
claimant an additional period in which to serve and file his claim. In a case
such as this one, involving an intentional tort, claimant would have been
afforded one (1) year from the date of accrual within which to serve his claim
upon the Attorney General, and file it with the Clerk of the Court. Court of
Claims Act §10(3-b).
The defendant served with a notice of intention to file a claim, unlike a
defendant served with a claim, does not then serve an answer raising the full
panoply of defenses available. Presumably, the notice of intention is reviewed,
docketed and - having been alerted to the likelihood of a claim - the defendant
expects service at some time within the time constraints suggested by whatever
cause of action is asserted in the notice.
In contrast, a defendant served with a claim must raise waiveable defenses
related to personal jurisdiction concerning timeliness and manner of service in
the answer or pre-answer motion it serves on claimant. Court of Claims Act
§11(c). Here, even though the notice of intention contains much of the same
material as that ultimately attached to the filed claim, and, indeed, satisfies
the statutory and regulatory requirements for the contents of a claim
Court of Claims Act §11(b); 22 NYCRR §206.6], it is still
not the claim that was filed with this court, defendant was only served with a
document it was entitled to treat as what it was labeled, and the filed claim
was never served on the defendant.
Finally, the notice of intention served on December 29,
, was not served within ninety (90) days
of accrual of the claim as required. Thus, while it may have alerted the
defendant to matters raised therein, it did not operate to allow claimant
additional time within which to serve and file his claim. Even if the notice of
intention had been timely served, a claim alleging a cause of action in the
nature of a battery would have to have been properly served on the Attorney
General’s Office and filed by September 26, 2006. Court of Claims Act
Accordingly, claimant has failed to establish that he served the filed claim
upon the defendant as required, resulting in a lack of subject matter
jurisdiction. Defendant’s motion to dismiss, upon which decision was
reserved at trial, is hereby granted, and Claim Number 113378 is in all respects
Let judgment be entered accordingly.