Defendant's motion to dismiss claim for improper service was granted and claimant's cross-motion to treat notice of intention as a claim pursuant to Court of Claims Act § 10 (8) was granted.
|Claimant short name:||BROWN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Nora Constance Marino, Esquire|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Kent B. Sprotbery, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 8, 2010|
|See also (multicaptioned case)|
Defendant moves to dismiss the instant claim pursuant to CPLR 3211 on the ground that this Court lacks both subject matter jurisdiction over the claim and personal jurisdiction over the defendant due to the improper service of the claim. Claimant cross-moves for late claim relief pursuant to Court of Claims Act § 10 (6) or, in the alternative, to treat the previously served notice of intention to file a claim as a claim pursuant to Court of Claims Act § 10 (8).
On January 5, 2007 a notice of intention to file a claim relating to an assault which allegedly occurred on October 29, 2006 in the "Big yard" at Great Meadow Correctional Facility was served on the Attorney General by certified mail, return receipt requested, The notice of intention alleges in pertinent part the following:
"On October 29, 2006, at approximately 1:10 p.m., during the afternoon recreation in the Great Meadow Correctional Facility's 'Big yard' I was standing in a line with about 10 to 15 other prisoners waiting to gain entrance into the weight lifting section of the 'Big yard.'
While waiting in line all of a sudden an unknown inmate turned face to face with me and slashed me down the left front side of my face with a razor blade like weapon. . .
This assault happened in the area of the facility's 'Big yard' that has a total of six guard stations for security purposes, two of these guard stations are in close vicinity of the assault when it happened, and those officers in those stations looked on as I was being assaulted by . . . [an] unknown inmate. By these officer's deliberate acts to allow me to be assaulted, [they] failed to protect me from serious physical harm. . . "
Following service of the notice of intention, a claim was filed and served upon the Office of the Attorney General by ordinary mail. Issue was joined by service of the defendant's answer, which asserted as an affirmative defense that the claim was served "by regular mail, in contravention of the requirements of the Court of Claims Act § 11(a) which require service by mail to be certified mail, return receipt requested" (defendant's Exhibit C).
Ordinary mail is not an authorized method for service of a claim under Court of Claims Act § 11 (a). As a result, service of a claim by ordinary mail is "insufficient to acquire jurisdiction over the State" (Thompson v State of New York, 286 AD2d 831, 831 ; see also Govan v State of New York, 301 AD2d 757 ; Turley v State of New York, 279 AD2d 819  lv denied 96 NY2d 708 ; Philippe v State of New York, 248 AD2d 827 ). Defendant established that service of the claim was not accomplished in accordance with the requirements of Court of Claims Act § 11 (a). As the manner of service defense was raised in the answer with sufficient particularity pursuant to Court of Claims Act 11 (c) dismissal of the claim is required.
Addressing claimant's cross-motion, both sections 10 (8) and 10 (6) of the Court of Claims Act require that the relief provided thereunder must be denied if the applicable statute of limitations for a like action against a citizen of the State has expired pursuant to article two of the CPLR. Here, the applicable period for commencement of a personal injury action founded upon negligence is three years (CPLR 214 ). Measured from the October 29, 2006 date of accrual, the cross-motion filed on August 6, 2009 is timely.
Court of Claims Act § 10 (8) (a) provides:
"A claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant."
Here, it is undisputed that the notice of intention was properly served upon the Attorney General within 90 days of the date the claim accrued (Court of Claims Act § 10 ). The notice of intention clearly sets forth the time when and place where the claim arose, the nature of the claim and the injuries alleged to have been sustained (Court of Claims Act § 11 [b]). The State in opposing the cross-motion has neither alleged nor demonstrated that prejudice would result should the application for relief under Court of Claims Act § 10 (8) be granted.
Based on the foregoing, defendant's motion is granted and the claim is dismissed. Claimant's cross-motion for leave to treat the notice of intention as a claim is granted and the claimant is directed to file a copy of the previously served notice of intention with the Clerk of the Court within thirty days of the filing of this Decision and Order. The Clerk shall assign an appropriate claim number upon claimant's compliance with Court of Claims Act § 11-a. Defendant shall serve an answer to the claim within 60 days of the date of filing of this Decision and Order. Claimant's cross-motion for late claim relief is denied as moot.
January 8, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: