The underlying claim seeks damages for claimant’s loss of personal
property while a patient at the Central New York Psychiatric
The claim alleges that it accrued on
September 17, 2007. However, the claim was not served on the Attorney General
until March 10, 2008.
It is the contention of the Attorney General that inasmuch as Court of Claims
Act § 10 (3) required claimant to serve either the notice of intention to
file a claim or the claim itself on the Attorney General within 90 days from the
date of accrual, and since claimant has failed to meet that deadline, this claim
is not timely. “The notice of claim requirements in Court of Claims Act
§§ 10 and 11 are jurisdictional prerequisites to the maintenance of a
claim and must be strictly construed” (Phillips v State of New
York, 237 AD2d 590). Inasmuch as there was no notice of intention to file a
claim, and inasmuch as the claim itself was not served until approximately 175
days following the date of accrual, this claim is untimely and is, therefore,
dismissed on this ground.
Additionally, defendant argues that the claim was not properly served, as the
requirements of Court of Claims Act § 11 (a) (i) have not been met. The
claim was not served upon the Attorney General by certified mail return receipt
requested, as evidenced by the envelope in which the claim was served.
Court of Claims Act § 11 (a) (i) specifically provides that:
[t]he claim shall be filed with the clerk of the court; and, except in the case
of a claim for the appropriation by the state of lands, 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
The law is well established that the “requirements of . . . Section 11 of
the Court of Claims Act are jurisdictional in nature and, therefore, must be
strictly construed” (Finnerty v New York State Thruway Authority,
75 NY2d 721, 722, citing with favor, Buckles v State of New York, 221 NY
418, 423 - 424). In Finnerty, where the Attorney General had not been
properly served under Court of Claims Act § 11, the court found that the
failure to properly so serve resulted “not in a failure of personal
jurisdiction . . . but in a failure of subject matter jurisdiction which may not
be waived.” (Finnerty v New York State Thruway Authority, 75 NY2d
721, 723). “[T]he use of ordinary mail to serve the claim upon the
Attorney-General is insufficient to acquire jurisdiction over the State”
(Philippe v State of New York, 248 AD2d 827 [3rd Dept 1998]).
Thus, this court failed to obtain jurisdiction over the defendant as a result
of the claimant Andre Lane’s failure to properly serve the defendant. The
claim is dismissed on this ground.
The court need not reach any other issues raised by defendant.
In sum, this claim is dismissed both because it is untimely and because of
improper service upon the defendant.