Defendant brings a motion to dismiss Claim No. 110314 on the ground that
claimant has failed to timely serve his claim in accordance with sections 10 and
11 of the Court of Claims Act. For the reasons set forth herein, the Court
grants defendant’s motion and dismisses Claim No. 110314.
The underlying claim, which is for negligence and medical malpractice, arises
out of an incident that occurred on January 5, 2002. Claimant alleges that on
said date, he fell and sustained injuries as a result of defendant’s
failure to repair a dangerous condition. He further alleges that the medical
personnel at the prison in which he was incarcerated failed to provide proper
and competent medical treatment to him.
Claimant alleges, in his pleadings, that he improperly served a notice of
intention to file a claim on April 5, 2002. Defendant, who raised the defense of
timeliness with particularity in its answer, argues that even if claimant
properly served said notice of intention, claimant was required to serve his
claim within two years of the accrual of the cause of action and failed to do
Court of Claims Act § 10 (3) states, in pertinent part, that a claim to
recover damages 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.
Court of Claims Act § 11 (a)(i) provides that the claim shall be filed
with the clerk of the court, and a copy shall be served upon the attorney
general within the times provided for filing with the clerk of the court.
Court of Claims Act § 11 (c) states that any objection or defense based
upon the failure to comply with (i) the time limitations contained in section
ten of the Court of Claims Act, (ii) the manner of service requirements, or
(iii) the verification requirements is waived unless raised, with particularity,
either by a motion to dismiss made before service of the responsive pleading is
required or in the responsive pleading.
Compliance with the filing and service requirements contained in sections 10
and 11 of the Court of Claims Act is a jurisdictional prerequisite to bringing
and maintaining an action in the Court of Claims, and failure to comply
constitutes a fatal jurisdictional defect requiring dismissal (see
Buckles v State of New York, 221 NY 418 ; Thomas v State of New
York, 144 AD2d 882 [3d Dept 1988]; Finnerty v New York State Thruway
Auth., 75 NY2d 721 ; Matter of Dreger v New York State Thruway
Auth., 177 AD2d 762 [3d Dept 1991], affd 81 NY2d 721 ).
In the present case, the claim accrued on January 5, 2002. Accordingly, even if
the notice of intention to file a claim was properly served upon defendant on
April 5, 2002, the claim was required to be filed and served on or before
January 5, 2004. The claim was filed on January 6, 2005, and served on January
11, 2005, more than one year after the requisite time period expired.
Claimant’s failure to comply with sections 10 and 11 of the Court of
Claims Act constitutes a fatal jurisdictional defect and warrants dismissal of
the claim (see Suarez v State of New York, 193 AD2d 1037 [3d Dept
Accordingly, defendant’s motion to dismiss (M-76107) is granted and Claim
No. 110314 is dismissed.