New York State Court of Claims

New York State Court of Claims

CANTY v. THE STATE OF NEW YORK, DEPARTMENT OF CORRECTIONAL SERVICES, COMMISSIONER GOORD, ex rel., SUPERINTENDENT OF FRANKLIN CORRECTIONAL FACILITY, #2008-038-591, Claim No. 107850, Motion No. M-74337


Synopsis


Defendant’s motion to dismiss granted. Notice of intention served by ordinary first class mail, and claim not served until more than ninety days after date of accrual of claim

Case Information

UID:
2008-038-591
Claimant(s):
TERRANCE CANTY
Claimant short name:
CANTY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK, DEPARTMENT OF CORRECTIONAL SERVICES, COMMISSIONER GOORD, ex rel., SUPERINTENDENT OF FRANKLIN CORRECTIONAL FACILITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107850
Motion number(s):
M-74337
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
TERRANCE CANTY, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael W. Friedman, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 4, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

This claim seeks compensation for physical injuries sustained by claimant as a result of defendant’s alleged negligence while claimant was incarcerated at Franklin Correctional Facility. Defendant moves to dismiss the claim on jurisdictional grounds. Claimant has not submitted any opposition to the motion. The claim accrued on October 1, 2002. Claimant sent a notice of intention to file a claim to the Attorney General by regular, first class mail, which was received by the Attorney General on October 30, 2002. The claim was filed with the Court and served upon the Attorney General in June 2003. In its Verified Answer to the claim, defendant asserted that the Court lacks personal jurisdiction due to claimant’s failure to serve the notice of intention in accordance with statutory requirements (Verified Answer, filed June 22, 2003, at ¶ 7).

A claim for personal injury arising from the alleged negligence of defendant’s employees must be filed with the Clerk of the Court of Claims and served upon the Attorney General within ninety days after accrual of the claim (Court of Claims Act § 10 [3]). The time for such filing and service is extended to two years from the date of accrual if, within the same ninety-day period, the claimant serves upon the Attorney General a written notice of intention to file a claim (id.). Service of a notice of intention by mail must be accomplished by certified mail, return receipt requested (Court of Claims Act § 11 [a] [i]). A notice of intention that is served upon the Attorney General by ordinary first class mail is a nullity which fails to extend claimant’s time within which to file and serve the claim (see Fulton v State of New York, 35 AD3d 977, 978 [3d Dept 2006], lv denied 8 NY3d 809 [2007]; Williams v State of New York, UID # 2007-030-574, Claim No. 114007, Motion No. M-73887, Scuccimarra, J. [Oct. 23, 2007]).

Here, the notice of intention was a nullity because it was served by ordinary first class mail, and the claim was not filed and served until more than ninety days after the accrual of the claim. Thus, defendant’s motion to dismiss the claim for lack of personal jurisdiction must be granted (see Fulton v State of New York, supra; Govan v State, 301 AD2d 757, 758 [3d Dept 2003], lv denied 99 NY2d 510 [2003]). Accordingly, it is

ORDERED, that defendant’s motion to dismiss is GRANTED, and Claim No. 107850 is hereby DISMISSED.

April 4, 2008
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers Considered
:


(1) Claim No. 107850, filed June 9, 2003;

(2) Verified Answer, filed July 22, 2003;

(3) Notice of Motion to Dismiss, dated December 17, 2007;

(4) Affirmation of Michael W. Friedman, AAG, dated December 17, 2007, with Exhibits A-B;

(5) Affidavit of Service of Sandra M. Schnapp, sworn to December 17, 2007.