Antonio Damon alleges in his claim that defendant’s agents at Downstate
Correctional Facility allowed a dangerous icing condition to accumulate causing
him to slip, fall and suffer injury, on or about December 18, 2007. In lieu of
an answer, the defendant has served the present motion to dismiss asserting that
claimant has failed to properly serve the claim as required, resulting in a lack
of personal jurisdiction.
Court of Claims Act §11(a) provides that the 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 or 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.
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 December 18, 2007, claimant was required to serve
a notice of intention, or serve and file a claim itself, within ninety (90)
days, or by March 17, 2008. As noted, service is complete when it is received
by the Attorney General’s Office. Accordingly, the claim was not timely
served, resulting in a lack of personal jurisdiction, duly raised by the
defendant in this pre-answer motion to dismiss.
As to the indications that the proper postage for certified mail, return
receipt requested was not paid by claimant’s attorney, seemingly the
Attorney General’s Office nonetheless accepted service and, rather than
not sign for the mail, monies were expended to pay the difference. [See
Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith,
¶3, Exhibits A and B]. Whether this raises yet another issue of
jurisdictional dimension is not reached by the court.
In any event, claimant has not been able to establish that he timely served the
claim upon the Attorney General as required, and the defendant has raised the
jurisdictional issue in a timely motion. Court of Claims Act §11(a).
Accordingly, Claim Number 114989 is hereby dismissed for a lack