Jose Antonetti seeks permission to serve and file a late claim alleging that
the State negligently allowed a dangerous condition to exist in a stairwell at
Downstate Correctional Facility [Downstate], where claimant fell and suffered
injury on August 26, 2008. The motion is unopposed. Simultaneously with his
motion papers, claimant submitted claim number 116454, that was filed in the
clerk’s office on February 20, 2009, and served on the Attorney
General’s Office at approximately the same time. No answer has apparently
been served or filed. The affidavit of service included with the claim and the
motion papers indicates that the Attorney General’s Office was served with
the claim and the motion papers by certified mail, return receipt requested on
an unspecified date, however claimant’s signature on the Affidavit of
Service was notarized on February 13, 2009, and the court’s copies of same
were received on February 20, 2009, suggesting receipt by the Attorney
General’s Office at the same time.
In the present motion papers and in the filed claim claimant avers that he
served a notice of intention to file a claim upon the Attorney General’s
Office on November 17, 2008 by certified mail, return receipt requested that was
returned by that office “as a nullity.” [Motion for Permission to
File a Late Claim, ¶2; Claim Number 116454 ¶14]. Thereafter, he
served another, verified notice of intention on or about November 21, 2008 by
regular mail. [Id.].
A notice of intention to file a claim and the claim must be verified “. .
. in the same manner as a complaint in an action in the supreme court” in
accordance with Court of Claims Act §11 (b). A defendant receiving an
unverified pleading - which for this purpose a notice of intention is - must
reject it and return as a nullity with due diligence pursuant to Civil Practice
Law and Rules §3022, or else waive any defense based upon a lack of
verification. Lepkowski v State of New York, 1 NY3d 201 (2003). When it
is a notice of intention that is the rejected pleading, the effect is upon the
timeliness of any subsequently served and filed claim.
Court of Claims Act §11(a) provides that the claim must be served
personally or by certified mail, return receipt requested, upon the attorney
general within the times prescribed in Court of Claims Act §10; and that
service is complete when it is received in the Attorney General’s Office.
Court of Claims Act §11(a)(i). Here, the time period within which to serve
either a notice of intention or a claim would be ninety (90) days from its
accrual on August 26, 2008. Court of Claims Act §10(3). A failure to serve
the claim during the time period and in the manner required results in a lack of
personal jurisdiction, unless the State has failed to properly plead
jurisdictional defenses or raise them by motion. In that case, the defense is
waived. Court of Claims Act §11(c).
Failure to serve the claim at all results in a lack of subject matter
jurisdiction that is not waiveable.
Since the defendant has neither opposed the present motion or, as of this
writing, served and filed an answer to the filed
, only the claimant’s
uncontradicted representations are before the court. Claimant has acknowledged
that he served the second notice intention by regular mail, meaning that such
service would not be effective, generally, to extend the time within which to
subsequently serve and file a claim.
Nonetheless, the defendant has waived any defense as to verification and the
ultimate untimeliness of the claim, and the present motion is unnecessary, since
no timely motion to dismiss claim number 116454 has been made, nor have such
defenses been interposed with particularity in a timely served answer.
Claim number 116454 is still before the court, and defendant has not answered,
nor has defendant sought relief pursuant to Civil Practice Law and Rules
§3012(d) seeking an extension of the time within which to
The Court of Claims Act, however,
prohibits the entry of a default judgment against the State. See
Claims Act §12(1). See Mabry v
State of New York
, UID # 2007-029-050, Claim No. 110024, Motion No. M-74215
(Mignano, J., November 28, 2007); Gibson v State of New York
, UID #
2000-017-611, Claim No. 101212, Motion No. M-61208 (O’Rourke, J., December
20, 2000). The claim must still be tried despite such default in answering, and
claimant will have to submit such evidence as will establish a prima facie case
of liability. At any trial, defendant will be precluded from offering evidence
as to liability, but will be allowed to cross-examine claimant’s
witnesses. With regard to damages, no such prohibition on the defendant’s
presentation of evidence obtains.
Based on the foregoing, the motion for late claim relief is denied. As noted,
claim number 116454 is still before the court and the parties are directed to