New York State Court of Claims

New York State Court of Claims

MILES v. THE STATE OF NEW YORK, #2009-015-179, Claim No. 116428, Motion No. M-76359


Motion to dismiss claim as improperly served was granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
James Miles, Pro SeNo Appearance
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 25, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves for dismissal of the instant claim pursuant to CPLR 3211 (a) (2), (7) and (8) on the ground that the claim was not served in accordance with the requirements of Court of Claims Act § § 11(a) and 10 (3). Claimant, an inmate proceeding pro se, alleges in both the claim and a notice of intention to file a claim that he slipped and fell on water on the floor of the Washington Correctional Facility mess hall on August 7, 2008 (defendant's Exhibits A and B). As reflected in defense counsel's affirmation in support of the motion, a notice of intention to file a claim was served on September 9, 2008 (defendant's Exhibit A). Defense counsel contends that the claim served on February 6, 2009 was improperly served by regular mail. In support of this contention defendant submitted a copy of the envelope in which the claim was mailed which establishes that the claim was indeed sent by regular mail.[1]

Court of Claims Act § 11(a) (i) provides, in relevant part, that a copy of the claim "shall be served upon the attorney general...either personally or by certified mail, return receipt requested..." This requirement is jurisdictional in nature and, as such, must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722 [1989]; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687 [2000]). While defense counsel established that service of the claim was not performed in strict compliance with the statute, thus requiring dismissal of the instant claim, time remains for the claimant to properly serve a claim upon the Attorney General. Court of Claims Act § 10 (3) provides that a claim for personal injuries caused by the negligence of the State shall be filed and served upon the Attorney General within ninety days following accrual of the 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." Claimant's service of the notice of intention to file a claim extended his time to file and serve a claim until two years after the date the claim accrued. As a result, there remains time for the claimant to properly file and serve a claim upon the Attorney General.

The defendant's motion to dismiss is granted upon the claimant's failure to serve the claim in compliance with the manner of service requirements of Court of Claims Act § 11 (a) (i).

June 25, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Amended notice of motion dated March 11, 2009;
  2. Affirmation of Belinda A. Wagner dated March 11, 2009 with exhibits.

[1]. While claimant apparently served defense counsel with opposition papers to this motion, none were filed with the Court.