The claim is dismissed as untimely. Claimant failed to serve a notice of intention to file a claim by certified mail, return receipt requested, on or before the 90th day following the accrual date.
|Claimant(s):||JOSEPH J. MURRELL and LUCAS CODY|
|Claimant short name:||MURRELL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||John P. Kingsley, P.C.|
|Defendant's attorney:||Hon. Barbara D. Underwood, NYS Attorney General
By: Paul F. Cagino, Assistant Attorney General,
|Third-party defendant's attorney:|
|Signature date:||November 1, 2018|
|See also (multicaptioned case)|
Claimants filed the instant claim on June 12, 2018, alleging that defendant failed to properly maintain a portion of the roadway located on County Route 6, near 125, in the Town of Clermont, County of Columbia, State of New York. Defendant now moves to dismiss the claim on the ground that the claim is untimely under Court of Claims Act § 10 (3) and Court of Claims Act § 11 (a) (i). Alternatively, defendant argues that the claim fails to state a cause of action. Claimants submitted a letter in response to the motion stating that they do not oppose the motion, and consenting to the dismissal of the claim against defendant. For the following reasons, the Court grants defendant's motion and dismisses the claim.
As relevant here, "[a] claimant seeking to recover damages for personal injuries caused by the negligence . . . or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept. 2011]; see Court of Claims Act § 10 ). Court of Claims Act § 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." "[A]s suits against defendant are permitted only by virtue of its waiver of sovereign immunity and are in derogation of the common law, the failure to strictly comply with the filing or service provisions of the Court of Claims Act divests the court of subject matter jurisdiction and compels dismissal of the claim" (Caci v State of New York, 107 AD3d 1121, 1122 [3d Dept. 2013] [internal quotation marks and citations omitted]; see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 ; Rodriguez v State of New York, 307 AD2d 657, 657 [3d Dept. 2003]). Once challenged, the burden is upon the claimant to establish proper service by a preponderance of the credible evidence (see Caci v State of New York, 107 AD3d at 1124; Boudreau v Ivanov, 154 AD2d 638, 639 [2d Dept. 1989]; Aquila v Aquila, 129 AD2d 544, 545 [2d Dept. 1987]).
As alleged, claimants' cause of action accrued on the October 1, 2017 (Verified Claim ¶ 5). Pursuant to Court of Claims Act 10 (3), claimants were required to serve a claim or notice of intention to file a claim upon the Attorney General no later than January 2, 2018.(1) Here, claimants served a notice of intention to file a claim upon the Attorney General by regular mail on January 2, 2018 (Cagino Aff., Exhibit A). "Alternative mailings which do not equate to certified mail, return receipt requested, are inadequate and do not comply with Court of Claims Act § 11 (a)" (Hodge v State of New York, 213 AD2d 766, 767 [3d Dept. 1995] [citations omitted]). Thus, claimants service of the notice of intention to file a claim by regular mail, as opposed to certified mail, return receipt requested, was insufficient to obtain jurisdiction over defendant.
Claimants then attempted to serve the notice of intention to file a claim by certified mail, return receipt requested. However, defendant received the notice of intention to file a claim on January 3, 2018--the 91st day following the accrual date of the claim. Service upon the Attorney General is not complete until the notice of intention to file a claim is received by the Attorney General (Mallory v State of New York, 196 AD2d 925, 926 [3d Dept. 1993]). Thus, the notice of intention to file a claim was not timely served (see Tartaglione v State of New York, UID No. 2016-016-002 [Ct Cl, Marin, J., Jan. 5, 2016]). Accordingly, as claimants failed to serve a notice of intention to file a claim upon the Attorney General within 90 days of the accrual of the claim, the instant claim that was filed with the Clerk of the Court on June 12, 2018 and served upon the Attorney General on June 14, 2018 is untimely and must be dismissed. In light of the foregoing, the Court need not reach defendant's alternate ground for dismissal.
Based upon the foregoing, it is hereby ordered that defendant's motion to dismiss the claim (M-92593) is granted and claim number 131564 is dismissed.
November 1, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion to Dismiss in Lieu of Answer, dated July 20, 2018; and Affirmation in Support of Motion to Dismiss in Lieu of Answer, affirmed by Paul F. Cagino, AAG on July 20, 2018, with Exhibits A through D annexed thereto.
2. Letter from counsel for claimants, John P. Kingsley, Esq., dated July 26, 2018.
1. The 90th day after the accrual date of the claim was Saturday, December 30, 3017. Accordingly, claimants' time for service was extended to Tuesday, January 2, 2018, pursuant to General Construction Law § 25-a.