New York State Court of Claims

New York State Court of Claims

BROOKS v. THE STATE OF NEW YORK, #2008-032-129, Claim No. 114092, Motion No. M-75319


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Eric Brooks, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Roberto Barbosa, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
December 16, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arose on July 3, 2007 at Southport Correctional Facility, where correctional officers allegedly intentionally assaulted claimant when he objected to their destruction of some of his personal property. Both a notice of intention to file a claim and a claim were served on the Attorney General on August 13, 2007 (Barbosa Affirmation, Exhibits A, B); the claim was filed with the Court two days later on August 15, 2007. In its answer, defendant State of New York asserted, as its second affirmative defense, that the Court lacks jurisdiction to hear the claim because these documents were served by regular mail rather than personally or by certified mail, return receipt requested as required by Court of Claims Act § 11(a). The defense is stated with sufficient information to meet the particularity requirement of section 11(c).

Defendant has now moved for an order dismissing the claim, providing a photocopy of the envelope in which both documents were mailed, indicating that regular mail postage was used (id, Exhibit C). In opposition to the motion, claimant has submitted an affidavit in which he recites, with some additional detail, the allegations of the claim and states, “Proper service in accordance with Section 10 & 11 of the Court of Claims Act was delayed as a direct result of the serious injury to claimants neck, wrist, and lower back which were inflicted improperly by defendants of claim” (Brooks Affidavit, ¶ 14).[1] Defendant has not moved to dismiss the claim on the ground that it was untimely, however, but rather that it was improperly served.

Court of Claims Act § 11 (a) provides, in relevant part, that a notice of intention and the copy of a claim that must be served on the Attorney General "shall be served personally or by certified mail, return receipt requested, upon the attorney general." The requirements set forth in Court of Claims Act § 11 are jurisdictional in nature and, as such, must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722 [1989]; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687 [3d Dept 2000]). A claimant’s failure to serve the Attorney General personally or by certified mail, return receipt requested, is a fatal jurisdictional defect and deprives this Court of the power to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Bogel v State of New York, 175 AD2d 493 [3d Dept 1991]).

Consequently, defendant’s motion is granted and Claim No.114092 is dismissed.

December 16, 2008
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion and Supporting Affirmation of Roberto Barbosa, AAG, with annexed Exhibits;

2. Reply of Eric Brooks, pro se.

Filed papers: Claim; Answer

[1]. If a litigant cannot file and serve his claim (or serve a notice of intention to file a claim) in a timely fashion, because of physical condition or other legitimate reason, the appropriate remedy is to commence an action for permission to file an untimely claim pursuant to Court of Claims Act §10(6).