Defendant's motion to dismiss based on lack of jurisdiction, failure to serve claim upon Attorney General as required (Court of Claims Act §11) granted.

Recitation:

The following papers, numbered 1 to 6, were read and considered on Defendant's motion

to dismiss:

1,2Notice of Motion, Affirmation by Dewey Lee, Assistant Attorney General, dated September 25, 2003, and accompanying exhibits [*2]

3Affirmation in Opposition by Elliot H. Fuld, Attorney for Claimant, dated October 3, 2003, and accompanying exhibits

4Reply Affirmation by Dewey Lee, Assistant Attorney General, dated October 10, 2003

5,6Filed papers: Claim, Answer



Text of the decision:

After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

James Hill, the Claimant herein, alleges in Claim Number 104661 that Defendant's agents negligently caused him physical injury by allowing a known dangerous condition to exist while he was incarcerated at Green Haven Correctional Facility (hereafter Green Haven). According to the Claim, the date of accrual was August 5, 1999, when rotting wooden bleachers Claimant was sitting on in a recreation area collapsed, causing him injury.

Defendant notes that a Notice of Intention was served on the Attorney General by certified mail, return receipt requested, on October 21, 1999. [Affirmation of Dewey Lee dated September 25, 2003, ¶3; Exhibit 1]. The Claim itself was served by regular mail upon the Attorney General on July 27, 2001. [Ibid Exhibit 2]. An affidavit of service filed with the claim, as well as Counsel for Claimant's Affirmation in Opposition confirm that service of the Claim upon the Attorney General was by regular mail.

Defendant moves to dismiss the Claim based upon its third defense, a lack of jurisdiction based upon Claimant's failure to serve the claim upon the Attorney General as required. Court of Claims Act §11.

In Counsel's Affirmation in Opposition, he argues that the statute requires that service by certified mail, return receipt requested upon the Attorney General of either a Notice of Intention or the Claim suffices to afford this Court jurisdiction over the Claim. Consequently, he avers, the timely and proper service of the Notice of Intention gives the Court jurisdiction, even though the Claim was served improperly.

This is a misreading of the applicable law and the cases decided thereunder.

The filing and service requirements contained in Court of Claims Act §§10 and 11 are jurisdictional in nature and must be strictly construed. Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 (1989); see also Welch v State of New York, 286 AD2d 496, 729 NYS2d 527, 529 (2d Dept 2001); Conner v State of New York, 268 AD2d 706, 707 (3d Dept 2000). Indeed, the statute provides in pertinent part ". . . [n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim . . . " Court of Claims Act §10.

Court of Claims Act §11(a) provides that " . . . a copy [of the claim] shall be served personally or by certified mail, return receipt requested, upon the attorney general . . ." within the time prescribed in Court of Claims Act §10; and service is complete when it is received in the [*3]Attorney General's Office. Court of Claims Act §11(a)(i). Service upon the Attorney General by ordinary mail is generally insufficient to acquire jurisdiction over the State, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. Court of Claims Act §11(c); Edens v State of New York, 259 AD2d 729 (2d Dept 1999); Philippe v State of New York, 248 AD2d 827 (3d Dept 1998).

The Claimant has the burden of establishing proper service [Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept 1989)] by a preponderance of the evidence. See Maldonado v County of Suffolk, 229 AD2d 376 (2d Dept 1996). Regulations require that proof of service be filed with the Chief Clerk within ten (10) days of service on the defendant. 22 NYCRR § 206.5(a).

Here, although the Claimant did serve a Notice of Intention ^[FN1] upon the Attorney General by the proper means, the Claim was not served as required. Court of Claims Act §11(a). The Defendant has raised the jurisdictional issue both in its Answer and in a timely motion. Accordingly, Motion Number M-67458 is in all respects granted and Claim Number 104661 is hereby dismissed for a lack of jurisdiction.

Appendices: