New York State Court of Claims

New York State Court of Claims

CARCHIPULLA v. THE STATE OF NEW YORK, #2009-030-512, Claim No. 115742, Motion No. M-76097


Order disposing of court’s order to show cause. Despite lack of answer in the file, claimant established that defendant was timely served with a notice of intention, and thereafter timely served with the claim.

Case Information

1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
February 27, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on the disposition of the Court’s Order to

Show Cause marked returnable February 18, 2009:

  1. Order to Show Cause dated January 13, 2009
  1. Affirmation in Opposition to Order to Show Cause by Christina M. Rieker, Budin, Reisman, Kupferberg & Bernstein, LLP attorneys for Claimant and attached exhibits
  1. Filed Papers: Claim, Affidavit of Service filed November 10, 2008
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 law

the Order to Show Cause is resolved as follows:

Initially, the Court is satisfied that claimant was duly served with a copy of the

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;[2] 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 § 206.5(a).

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.

February 27, 2009
White Plains, New York

Judge of the Court of Claims

[2]. Court of Claims Act §10(3) applicable here provides: “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.”