Claimant brings a motion seeking summary judgment in his favor. Defendant
opposes Claimant’s motion and cross moves to dismiss the claim on the
ground that the Court lacks personal jurisdiction over Defendant and subject
matter jurisdiction over the claim. As it may be potentially dispositive, the
Court will first address Defendant’s motion to dismiss, to which Claimant
has submitted no opposition.
Defendant argues the claim should be dismissed because it was never served upon
the Attorney General, as required by Court of Claims Act §11. In support of
its motion, Defendant submits the affidavit of Lenore Perrott, a Senior Clerk in
the Albany Office of the Attorney General of the State of New York. According to
her affidavit, Ms. Perrott conducted a review of the paper and electronic files
in the office of the Attorney General of the State of New York, Claims Bureau,
and found that the only document received by the Office of the Attorney General,
with respect to the subject claim, was a copy of correspondence from the Court
of Claims, dated August 3, 2007, acknowledging receipt of the claim on July 18,
2007. According to Ms. Perrott, there is no record of the claim ever being
served on the attorney general.
The nature of the underlying claim, which was filed on July 18, 2007, is
unclear. As best as the Court can tell, Claimant is alleging that the conduct of
certain employees of the New York State Police Forensic Crime Laboratory
contributed to his arrest and/or conviction. Whether characterized as a claim
for an intentional tort or an unintentional tort, the time period for serving
the claim upon the Attorney General is 90 days from the date of accrual, unless
the Claimant, within said time, serves the attorney general with a written
notice of intention to file a claim, in which event the claim would need to be
filed and served upon the Attorney General within one year after accrual of the
claim for an intentional tort or two years after accrual for an unintentional
tort (Court of Claims Act §§10 , 10 [3-b]). Claims and notices of
intention to file a claim must be served upon the Attorney General by personal
service or certified mail, return receipt requested (Court of Claims Act
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 (Buckles v State of New
York, 221 NY 418 ), and failure to comply constitutes a fatal
jurisdictional defect requiring dismissal (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 ; Suarez v State of
New York, 193 AD2d 1037 [3d Dept 1993]).
According to the claim filed by Claimant, the claim accrued on June 30, 2007.
Accordingly, the claim would need to have been served upon the Attorney General
on or before September 28, 2007, unless a notice of intention to file a claim
was served upon the Attorney General within said time frame. If a notice of
intention to file a claim was served by September 28, 2007, Claimant would have
had until June 30, 2009 at the latest, to serve the claim upon the Attorney
Although Claimant alleges in his claim that a notice of intention was served
upon defendant, the proof submitted reflects otherwise. To begin, it should be
noted that the only reference to a notice of intention having been served upon
Defendant is in the claim. Claimant indicates in that claim that he served a
notice of intention on July 16, 2007, which is, notably, three days after
the claim was verified. Moreover, the documents submitted by Defendant in
support of its motion reflect that the only document ever served by Claimant
upon Defendant by either personal service or certified mail, return receipt
requested (the manner in which a claim and a notice of intention are to be
served), was a notice of intention, served on May 23, 2007 (one month prior to
the alleged accrual of the subject claim) with regard to claim number 113763.
In light of the foregoing and the fact that the subject claim was not timely
served upon Defendant, Defendant’s cross motion to dismiss (CM-76662) is
granted. Claim number 113972 is dismissed and Claimant’s motion for
summary judgment (M-76478) is denied as moot.
1. Claimant’s Motion for Summary Judgment and Affidavit, sworn to February
17, 2009, with Exhibits;
2. Defendant’s Notice of Cross Motion and Affirmation of Carol A.
Cocchiola, AAG, dated May 8, 2009, with Exhibits.
Filed Papers: Claim, filed July 18, 2007.