New York State Court of Claims

New York State Court of Claims

FEMMINELLA v. THE STATE OF NEW YORK, #2008-041-038, Claim No. 115276, Motion No. M-75149


Synopsis

Notice of intention to file claim served by FedEx Express is a nullity and the subsequently filed claim is therefore untimely and dismissed for lack of jurisdiction.

Case Information

UID:
2008-041-038
Claimant(s):
LAWRENCE FEMMINELLA
1 1.The caption is amended to reflect the only proper defendant.
Claimant short name:
FEMMINELLA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption is amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115276
Motion number(s):
M-75149
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
NEIL J. SALTZMAN, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney General
By: Michael T. Krenrich, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 3, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Defendant moves to dismiss the claim based upon claimant’s failure to timely file and serve the claim and upon the ground that the notice of intention to file a claim (notice of intention) was unverified. In particular, defendant argues that the claimant’s notice of intention, served via FedEx Express, did not extend the ninety-day period in which claimant was required to serve and file his claim since Court of Claims Act § 11 (a) requires that a notice of intention be served either personally or by certified mail, return receipt requested. The claim, served and filed more than ninety days after accrual, is therefore alleged to be untimely.

The claimant, by means of an unsworn statement by his attorney (oddly dated May 8, 2008, prior to service of the motion) opposes the motion.

The claim alleges that defendant wrongfully confined claimant and states an accrual date of May 23, 2007, when claimant was released from confinement.

Pursuant to Court of Claims Act § 10 (3):
“A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim.”
Court of Claims Act § 11 (a) (i), provides, at relevant part, as follows:
“The claim shall be filed with the clerk of the court; and, . . . a copy shall be served upon the attorney general within the times hereinbefore provided for filing with the clerk of the court either personally or by certified mail, return receipt requested, . . . . Any notice of intention shall be similarly served upon the attorney general within the times hereinbefore provided for service upon the attorney general. . . .”
Courts have consistently held that “[a]s a condition of the State’s limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim” (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 [2005]; Roberts v State of New York, 11 AD3d 1000, 1001 [4th Dept 2004]; Pristell v State of New York, 40 AD3d 1198 [3d Dept 2007]).

The claim was required to be served and filed within ninety (90) days of its accrual on May 23, 2007 unless a notice of intention was served on the Attorney General, either personally or by certified mail, return receipt requested, within ninety days of May 23, 2007.

A notice of intention, served via FedEx Express, was received by the Attorney General on August 14, 2007, within ninety days of accrual. The claim was served on the Attorney General on May 21, 2008 and filed with Clerk of the Court of Claims on May 22, 2008.

In Martinez v State of New York (282 AD2d 580 [2d Dept 2001], lv denied 96 NY2d 720 [2001]), the court considered whether express mail service of a notice of intention satisfied the requirements of Court of Claims Act § 11 (a):
“The requirements of Court of Claims Act § 11 are jurisdictional and must be strictly construed, and failure to comply with the service requirements therein results in a lack of jurisdiction (see, Finnerty v New York State Thruway Auth., 75 NY2d 721; Pagano v New York State Thruway Auth., 235 AD2d 408). Here, the claimant’s service of his notice of intention to file a claim by express mail was improper, as that is not one of the authorized methods of service under Court of Claims Act § 11 (a) (i) (see, Turley v State of New York, 279 AD2d 819; Negron v State of New York, 257 AD2d 652; Hodge v State of New York, 213 AD2d 766). Thus, no jurisdiction was acquired, and the claim was properly dismissed.”
Since the FedEx Express service of the notice of intention did not extend claimant’s time to file and serve the claim, the claim, served and filed more than ninety days after accrual, is rendered untimely and must be dismissed for lack of jurisdiction. As such, the Court need not consider whether the notice of intention was properly verified.

Defendant’s motion to dismiss is granted. The claim is dismissed.


October 3, 2008
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Defendant’s Notice of Motion, filed June 23, 2008;
  2. Affirmation of Michael T. Krenrich, dated June 23, 2008, and annexed exhibits;
  3. Unsworn statement of Neil J. Saltzman, dated May 8, 2008, with annexed exhibits.