Miguel Carchipulla alleges in his claim, filed in the office of the Chief Clerk
on August 25, 2008, that defendant’s agents negligently allowed a
dangerous condition to exist at his job site at Sing Sing Correctional Facility
[Sing Sing] on December 24, 2007 causing him injury. He alleges that a Notice of
Intention to File a Claim was served upon the Attorney General’s Office on
March 13, 2008. The Affidavit of Service filed in the office of the Chief Clerk
indicates that the process server delivered the claim to J. Deloatch, at Sing
Sing on October 15, 2008. No answer has been filed.
After carefully reviewing the papers issued and submitted and the applicable
the Order to Show Cause is resolved as follows:
Initially, the Court is satisfied that claimant was duly served with a copy of
Order to Show Cause, issued by the Court after its review of the filed claim and
the affidavit of service therein, by service upon Counsel of record. The
defendant was also served.
Court of Claims Act §11(a) provides that “. . . a copy [of the
claim] shall be served upon the attorney general . . . either personally or by
certified mail, return receipt requested, ” within the time prescribed in
Court of Claims Act §10;
and service is
complete when it is received in the Attorney General’s Office. Court of
Claims Act §11(a)(i). Personal service is accomplished by service upon the
Attorney General or an Assistant Attorney General. Civil Practice Law and Rules
§307. The claimant has the burden of establishing proper service
[Boudreau v Ivanov
, 154 AD2d 638, 639 (2d Dept 1989)] by a preponderance
of the evidence. See Maldonado v County of Suffolk
, 229 AD2d 376
(2d Dept 1996). Regulations require that proof of service be filed with the
Chief Clerk within ten (10) days of service on the defendant. 22 NYCRR §
Court of Claims Act §11(b) requires that a Notice of Intention “. .
. state the time when and place where such claim arose, [and] the nature of same
. . . ” The purpose of the Notice of Intention is to put the Defendant
State on notice of potential suit against it, so that it may investigate the
claim and infer a theory of liability. It also acts to extend the period within
which a Claim must be served and filed, provided it has been properly served and
contains the required information. While it need not be scrutinized with the
same attention as a pleading, it should nonetheless perform its notice function,
as well as provide specific enough information to determine whether any
subsequently served and filed Claim is timely filed.
Counsel for claimant has attached proof of service of the claim upon the
Attorney General’s Office on January 26, 2009 by certified mail, return
receipt requested in the form of photocopies of the green return receipt card.
[Affirmation in Opposition to Order to Show Cause, ¶3, Exhibit A]. Counsel
also indicates that it was believed that the claim had been previously served in
December 2008, but concedes that the claim may have inadvertently been omitted
from the correspondence. [See Exhibit B].
Assuming a date of accrual as noted in the claim of December 24, 2007, as well
as timely and proper service on the Attorney General’s Office of a Notice
of Intention to File a Claim as alleged on March 13, 2008, service by the proper
means on the proper entity by January 26, 2009 is well within the statutory
requirement that the claim be served within two (2) years of its accrual when an
adequate notice of intention is timely served on defendant.
Accordingly, based on the foregoing, the court is satisfied that the claim was
timely served by certified mail, return receipt requested on January 26, 2009,
subject to whatever defenses defendant may raise in its answer.