New York State Court of Claims

New York State Court of Claims

EDWARDS v. THE STATE OF NEW YORK, #2009-038-101, Claim No. 109833, Motion No. M-76234


Defendant’s motion to dismiss granted. Failure to serve Attorney General with the claim requires dismissal of claim for lack of subject matter jurisdiction.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Claimant’s attorney:
Defendant’s attorney:
New York State Attorney General
On Motion: Paul F. Cagino, Assistant Attorney GeneralAt Trial: No appearance
Third-party defendant’s attorney:

Signature date:
April 9, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an individual incarcerated in a State correctional facility, filed this claim on September 13, 2004, seeking compensation for magazines that were allegedly stolen from his property bin on or about March 21, 2004 at Upstate Correctional Facility. The claim was placed on the Court’s trial calendar for March 25, 2009. Defendant made a motion to dismiss the claim on jurisdictional grounds, which claimant opposes. Although the motion was returnable on February 25, 2009, the motion papers were not presented to this Court until the day of trial, due to a clerical error. The Court noted defendant’s pending motion on the record, reserved decision on defendant’s motion and the trial on the merits of the claim proceeded with defendant making no appearance. On its motion to dismiss, defendant contends that the claim was never served upon the Attorney General, and that the notice of intention to file a claim that was served upon the Attorney General was not timely served. In opposition to defendant’s motion, claimant argues that his notice of intention was timely served because it was timely served after his administrative remedies were exhausted. Claimant does not address his alleged failure to serve the claim. For the reasons that follow, defendant’s motion to dismiss the claim on jurisdictional grounds must be granted.

Court of Claims Act § 11(a) requires that a copy of the claim be served upon the Attorney General. It is well established that the requirements of Court of Claims Act § 11(a) are jurisdictional in nature, and that the failure to serve the claim upon the Attorney General deprives the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 762-763 [3d Dept 1991], affd 81 NY2d 721 [1992] [“Service upon the Attorney-General is one of the mandatory terms and conditions required by statute in order to commence an action against the State”]; Suarez v State of New York, 193 AD2d 1037 [3d Dept 1993]; Epps v State of New York Dept. of Corrections, UID # 2009-038-512, Claim No. 115377, Motion No. M-75707, DeBow, J. [Feb. 4, 2009]).

While it is undisputed that claimant served the Attorney General with a notice of intention to file a claim – a document that merely notifies the Attorney General that a claim may be filed and served – that document is not the claim (see Court of Claims Act § 11). A properly and timely served notice of intention will extend the period of time within which a claimant may file and serve the claim (see Court of Claims Act § 10), but it is not the claim (cf. Court of Claims Act § 10 [8] [authorizing claimant to move for permission to treat the notice of intention as the claim]). Here, the claim that was filed with the Court was accompanied by an affidavit of service that did not reflect service of the claim on the Attorney General. Although the Chief Clerk’s letter confirming receipt and filing of the claim specifically instructed claimant that “[i]f you have not yet filed proof of service of the claim upon the defendant, please do so immediately” (see Correspondence of David B. Klingaman, Sept. 23, 2004; see also 22 NYCRR § 206.5 [a] [“(p)roof of service [of the claim] on the defendant shall be filed ... with the clerk within ten days of such service”]), the Court’s file for this claim does not contain such proof of service. The affidavit of Lenore Perrott, Senior Clerk in the Office of the Attorney General, is submitted in support of defendant’s motion, and it establishes that the claim was never served upon defendant. The defendant never filed an answer to the claim, which further reflects a failure to serve the claim (see Bryant v State of New York, UID # 2008-030-021, Claim No. 113399, Scuccimarra, J. [Aug. 28, 2008]). As noted above, claimant’s opposition to defendant’s motion does not assert that the claim was served on the Attorney General. Thus, the Court must conclude that the claim was not served on the Attorney General as required by Court of Claims Act § 11(a), and accordingly, the claim must be dismissed for lack of subject matter jurisdiction.

In light of this conclusion, the Court need not address whether claimant’s service of the notice of intention was timely. It is

ORDERED, that Motion No. M-76234 is GRANTED, and Claim No. 109833 is hereby DISMISSED.

April 9, 2009
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 109833, with exhibits and affidavit of service, filed September 13, 2004;

(2) Correspondence of David B. Klingaman, Chief Clerk of the Court of Claims, dated September 23, 2004;

(3) Notice of Motion to Dismiss, dated February 9, 2009;

(4) Affirmation of Paul F. Cagino, AAG, dated February 9, 2009;

(5) Affidavit of Lenore Perrott, sworn to February 9, 2009, with Exhibits A-C;

(6) Claimant’s Response to Motion to Dismiss, dated February 10, 2009.