Summary
In Baggett v State of New York (124 A.D.2d 969), a notice of intention was served by ordinary mail and the defect was preserved.
Summary of this case from Sandoval v. State of New YorkOpinion
November 10, 1986
Appeal from the Court of Claims, Lowery, J.
Present — Dillon, P.J., Denman, Green, Pine and Balio, JJ.
Order unanimously reversed on the law without costs and motion granted. Memorandum: The failure to serve a notice of intention to file claim upon the Attorney-General in the manner required by law is a fatal jurisdictional defect (see, Byrne v State of New York, 104 A.D.2d 782, lv denied 64 N.Y.2d 607). At the time claimant attempted to serve the notice of intention upon the Attorney-General, Court of Claims Act § 11 required that a copy of the notice of intention be "served" upon the Attorney-General unless the Clerk of the Court of Claims "delivered" a copy to the Attorney-General within the statutory time period. No proof was submitted that the Clerk of the Court of Claims made such a delivery.
Although Court of Claims Act § 11 does not, in haec verba, require personal service, the CPLR provisions governing practice in Supreme Court apply (see, Court of Claims Act § 9). The CPLR requires personal service (CPLR 307, 308; Matter of Scott v Coughlin, 111 A.D.2d 480, lv denied 65 N.Y.2d 606; Matter of Harlem Riv. Consumers Coop. v State Tax Commn., 44 A.D.2d 738, affd 37 N.Y.2d 877). Hence, service of a copy of the notice of intention by ordinary mail was insufficient to acquire personal jurisdiction over the State, and the claim must be dismissed.