This is a claim by Shawn Pauling (hereinafter “claimant”) for
injuries due to the alleged negligence of the defendant. The accident took
place on December 9, 2007, at Eastern Correctional Facility, Napanoch, New York.
Claimant slipped and fell on ice on the walkway in the outdoor recreation area.
Claimant moves this Court to strike defendant’s answer and for summary
Defendant cross-moves for an order dismissing the claim due to claimant’s
failure to timely serve and file the claim
The requirements of the Court of Claims Act are jurisdictional in nature and
must be strictly construed (Lepkowski v State of New York, 1 NY3d 201;
Kolnacki v State of New York
, 8 NY3d 277 
Lurie v State of New York
, 73 AD2d 1006, aff’d
52 NY2d 849).
The purpose of these requirements is to give the State prompt notice of an
occurrence and an opportunity to investigate the facts and prepare a defense.
It is well settled that if the filing is not timely then the claim is subject to
dismissal (Greenspan Bros. v State of New York
, 122 AD2d 249). Court of
Claims Act §10(3) states that the claim or notice of intention shall be
served and filed within 90 days of the date of accrual. If a notice of
intention is served upon the Attorney General’s Office then claimant must
serve and file the claim within 2 years of the date the claim accrued.
According to the papers before the Court, claimant first served a Notice of
Intention upon the Attorney General’s Office on February 1, 2008. While
this service is within the 90 day time limit, the Notice of Intention was served
by ordinary mail, which is not good service (Court of Claims Act §11[a]).
Thereafter, claimant, admittedly served the Notice of Intention on March 12,
2008, upon the Attorney General’s Office. While service was accomplished
in an accepted manner, it was beyond the 90 days from the date of accrual.
Claimant then served a claim upon the Attorney General’s Office on June
12, 2008. This claim was unverified. A verified claim was served on the
Attorney General’s Office on June 26, 2008, by regular mail. The claim
was not filed in the Clerk’s Office until June 9, 2008.
As previously noted, the requirements of the Court of Claims Act are
jurisdictional in nature. The failure to properly or timely serve and/or file
the claim deprives the court of subject matter jurisdiction. In the instant
case, the Notice of Intention was served upon defendant on the 94th day and,
therefore, did not serve to extend claimant’s time to serve and file a
claim. The claim was filed in the Clerk’s Office 183 days after the
Based upon the foregoing, the Court grants defendant’s cross-motion to
dismiss the claim. Claimant’s motion is denied as moot.