Defendant brings a motion to dismiss the claim on the grounds that the notice
failed to comply with the requirements of Court of Claims Act § 11(b) and
the claim was not served by certified mail, return receipt requested. Claimant
opposes the motion.
On May 27, 2008, a notice of intention was received by the Attorney
General’s office by certified mail, return receipt requested. The notice
of intention sets forth the following regarding the nature of the claim, and the
place and date it arose:
The nature of the claim is for negligence and medical malpractice,
as well as for other and further claims as will arise during the
submittal [sic] of the verified complaint at a later date.
The place where the claim arose is Riverview Corr. Facility.
The claim arose on the 9th day of May, 2008.
Court of Claims Act § 11(b) requires that a notice of intention like a
claim, set forth the time when and the place where such claim arose and the
nature of same. A notice of intention, need not meet these statutory
requirements with “[a]bsolute exactness,” but what is required is a
statement made with sufficient definiteness to enable the State to investigate
the allegations promptly to ascertain its liability under the circumstances and
to not mislead, deceive or prejudice the rights of the State (Heisler v State
of New York, 78 AD2d 767, 767-768; Grumet v State of New York, 256
AD2d 441). “A notice of intention will be sufficient if it provides the
State with fair and timely notice of those facts necessary to conduct a
meaningful investigation.” (Cannon v State of New York, 163 Misc
2d, 623, 626; Schwartzberg v State of New York, 121 Misc 2d 1095,
affd 98 AD2d 902). “In short, substantial compliance with section
11 is what is required.” (Heisler, 78 AD2d at 767).
Here, the notice of intention Claimant served upon the Attorney General fails
to provide any facts describing what the State allegedly did wrong. Merely
providing a date and alleging medical malpractice and negligence is
insufficient. Claimant needs to provide some factual information by which the
State could identify how it allegedly committed medical malpractice or was
negligent (see DeHart v State of New York, 92 Misc 2d 631 [nothing in
notice of intention denotes any legal theory or act or omission attributable to
the State]; Parmes v State of New York, Ct Cl, Marin, J., dated June 2,
2006, Claim No. 111955, Motion No. M-71412 [UID # 2006-016-042], [notice of
intention is vague and general and fails to set forth what the State did wrong];
Allen v State of New York, Ct Cl, Patti, J., dated December 31, 2001,
Claim No. 103513, Motion Nos. M-63467, CM-63604 [UID# 2001-013-032], [notice of
intention that provides only the date and time of day claimant was injured and a
description of the injury suffered was not sufficient]; Wheeler v State of
New York, Ct Cl, Collins, J., dated June 15, 2001, Claim No. 103821, Motion
No. M-63282 [UID#2001-015-159], [allegation that claimant was injured in a knife
attack in a hallway at a correctional facility by an unidentified assailant
without any specific allegation of negligence was not sufficient]).
Claimant’s notice of intention did not comply with the requirements of
Court of Claims Act § 11(b) and is therefore jurisdictionally defective.
The notice of intention failed to extend the time for Claimant to file and serve
a claim (Court of Claims Act § 10). Claimant’s claim was not
served within 90 days of the date of accrual and is therefore untimely and must
be dismissed. Moreover, Claimant served his claim by regular mail, not
certified mail, return receipt requested as required by Court of Claims Act
§ 11(a)(i). Service by regular mail is not service sufficient to commence
an action in this Court, and the Court cannot ignore the service defect (see
Bogel v State of New York, 175 AD2d 493, 494; Diaz v State of New
York, 174 Misc 2d 63, 64).
Based upon the foregoing, the Court GRANTS Defendant’s motion and the
claim is DISMISSED.
Claimant, in his affidavit in opposition to Defendant’s motion, makes a
passing request that the Court, if Defendant’s motion is granted,
“fix the issue and permission to file a late
[sic]. Claimant has not made a
proper application for consideration as a Court of Claims Act § 10(6) late
claim motion. Claimant must provide a notice of motion requesting late claim
relief, and set forth facts addressing the factors the Court must consider in
determining a late claim motion. Accordingly, the Court will not address this
request at this time; however, Claimant may file a proper late claim motion in
accordance with the Court of Claims Act and the Uniform Rules for the Court of