For the reasons set forth below, the State’s motion to dismiss the Claim
based upon Claimant’s failure to comply with the service requirements of
Court of Claims Act §§ 10 and 11 is granted.
The Claim, which was filed with the Clerk of the Court on June 17, 2004,
alleges that, on March 18, 2004, Claimant was assaulted by several correction
officers in the infirmary at Upstate Correctional Facility in Malone, New York.
Claimant asserts that he was denied medical care and that his constitutional
rights were violated.
Pursuant to Court of Claims Act provisions applicable to personal injury
actions, Claimant was required to file and serve his Claim within 90 days from
the date of accrual unless a written Notice of Intention to File a Claim was
served upon the Attorney General within such time period. In that case, the
Claim itself was required to be filed and served upon the Attorney General
within two years after the accrual of the Claim (to the extent Claimant asserts
injuries caused by negligence or unintentional torts) or within one year (to the
extent he asserts intentional torts of State employees) (Court of Claims Act
§§ 10, 10[3-b]). In either case, Claimant was required to initiate
action within 90 days of the Claim’s accrual.
Section 11(a)(i) of the Court of Claims Act provides that the Claim shall be
filed with the Clerk of the Court and that a copy shall be served upon the
Attorney General within the time period provided in Section 10 of the Court of
Claims Act, either personally or by certified mail, return receipt requested.
It is well established that failure to timely serve the Attorney General in
strict compliance with Court of Claims Act § 11 gives rise to a
jurisdictional defect (see Finnerty v New York State Thruway Auth., 75
NY2d 721, 723 ; Matter of Dreger v New York State Thruway Auth.,
177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 ; Suarez v
State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]).
Pursuant to Court of Claims Act § 11(c), however, any such defect is
waived unless it is raised with particularity as an affirmative defense, either
by motion to dismiss prior to service of the responsive pleading or in the
responsive pleading itself (see Knight v State of New York, 177 Misc 2d
181, 183 [Ct Cl 1998]).
In his affirmation submitted in support of the State’s motion, Defense
counsel asserts that the Attorney General’s office received a Claim by
certified mail, return receipt requested, on June 18, 2004 (see Ex. A
attached to Motion). Court of Claims Act § 11(a)(i) provides,
“[s]ervice by certified mail, return receipt requested, upon the attorney
general shall not be complete until the claim . . . is received in the office of
the attorney general.” Claimant asserts his Claim accrued on March 18,
2004 (Claim, ¶ 3). Defendant asserts the Claim was received by the
Attorney General on Friday, June 18, 2004, 92 days after accrual (see Ex.
A attached to Motion). It does not matter that the Claim was postmarked on
Wednesday, June 16, 2004, the 90th day after accrual (see Court of Claims
Claimant has not submitted any opposition to this motion.
Court of Claims Act §10 is more than a statute of limitations; it is a
jurisdictional prerequisite to bringing and maintaining an action in this Court
(DeMarco v State of New York, 43 AD2d 786 [4th Dept 1973],
affd 37 NY2d 735(1975); Antoine v State of New York, 103 Misc 2d 664
[Ct Cl 1980]). Failure to timely comply with the statutory filing requirements
of the Court of Claims Act constitutes a fatal jurisdictional defect requiring
dismissal (Buckles v State of New York, 221 NY 418 ; Ivy v State
of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York,
104 AD2d 782 [2d Dept 1984], lv denied 64 NY2d 607). This defect
was timely and properly raised with particularity in the State’s Answer
(dated July 21, 2004) as its first affirmative defense, in accordance with Court
of Claims Act § 11(c).
Based upon the foregoing, Defendant’s motion is granted and the Claim is
dismissed for failure to timely serve and file the Claim in accordance with
Court of Claims Act §§ 10(3) and 10 (3-b) .