Volume 4 / Edition 1
This Week; Focus On: “State Your Intentions, Please”: Notice of Claim
Filing a claim is the first formal step in bringing an action for relief to the court’s attention. Our focus this week will be on the New York State Court of Claims. Here at BNI, our experience has been that it is hugely beneficial for the legal professional’s staff (admin, paralegals, investigators…) to understand how, when and why claims should be filed. It allows the entire team to remain focused on meeting the client’s needs in a timely manner. Below are the most commonly asked FAQs regarding filing such a claim and, we’ve attached a blank fill-in claim form.
New York State Court of Claims, Frequently Asked Questions
Who can be sued in the Court of Claims?
How do I commence a claim in the Court of Claims?
When must a claim be served and filed?
What is a Notice of Intention to File a Claim?
What information must a Claim or a Notice on Intention contain?
What happens once a Claim is filed?
The law and rules governing practice in the Court of Claims is set forth in the Court of Claims Act, the Uniform Rules for the Court of Claims (22 NYCRR Part 206) and in the decisions of the Court of Claims and of appellate courts interpreting these statutes and rules.
1) Who can be sued in the Court of Claims?
The Court of Claims has jurisdiction over the State of New York as well as certain authorities that are sued under their own name. The court does not have jurisdiction over any individuals, including State employees, although claims may be maintained against the State based on allegedly wrongful conduct of employees for which the State is responsible under the legal principle of respondeat superior. Generally, State agencies do not have a legal existence separate from that of the State, and thus where a claim is based on alleged improper conduct of, for example, the Department of Transportation or the Department of Correctional Services, the named defendant should be “The State of New York.”
Certain public authorities, which are considered to have a distinct legal existence, are sued in the Court of Claims under their own names. These include the New York State Thruway Authority, the City University of New York, and the Power Authority of the State of New York (for appropriations claims only). Other public authorities, such as the Dormitory Authority, are sued in Supreme Court pursuant to the procedure set forth in the General Municipal Law. One must always check the legislation that establishes a particular authority, often found in Public Authorities Law, when trying to determine whether the Court of Claims or the Supreme Court is the appropriate forum. Note that the Court of Claims Act governs procedure in the Court of Claims while the General Municipal Law sets forth the steps that must be followed to sue a governmental entity in Supreme Court. There is no overlap between these two schemes; i.e., the General Municipal Law has absolutely no application in the Court of Claims.
The Court of Claims has no jurisdiction over lawsuits involving county, town, city or village governments, agencies or employees. These governmental entities are all distinct from the State, and litigation against them is governed by the provisions of the General Municipal Law. For example, the Court of Claims typically has no jurisdiction over causes of action accruing at city or county correctional facilities, such as Rikers Island or any county jail, no jurisdiction over claims of negligent road maintenance involving county or town owned roads, and no jurisdiction over “premises liability” suits accruing in county or locally owned governmental buildings.
One common factor between suits against the State in the Court of Claims and suits against a local government in the Supreme Court is that action must be taken in both cases within a short period of time (typically 90 days, for tort claims). Thus, prompt and careful investigation to determine the appropriate defendant is essential.
2) How do I commence a claim in the Court of Claims?
A claim is commenced by completing the following steps (see Court of Claims Act §11[a]):
1. preparing a document called a “claim”,2. filing a copy with the Clerk of the Court, and3. serving a copy upon the Attorney General, either personally or by certified mail, return receipt requested.
Filing occurs on the date when a claim is received in the office of the Chief Clerk, in Albany, not when it is mailed. Claims cannot be filed with the various district offices and judges’ chambers around the State. A claim can be filed by: (1) personal delivery, (2) regular mail, or, (3) fax (please see our Filing by Fax page.)
Note that when the defendant is the New York State Thruway Authority, the City University of New York, or the New York State Power Authority, that defendant must be served in addition to the Attorney General.
3) When must a claim be served and filed?
Section 10 of the Court of Claims Act sets forth the following time periods:
(1) appropriations claims – within three years after accrual.
(2) wrongful death claims – within 90 days after the appointment of the executor or administrator and within two years of the date of death.
(3) personal injury or property damage claims based on negligence or unintentional tort – within 90 days after accrual.
(3-a) personal injury or property damage claims based on negligence or unintentional tort of a member of the organized militia – within 90 days after accrual.
(3-b) personal injury or property damage claims based upon intentional tort – within 90 days after accrual.
(4) claims for breach of contract and any other type of claim not specified in section 10 – within six months after accrual.
(5) claims by correctional facility inmates for injury to or loss of personal property – within 120 days after exhaustion of the inmate’s personal property claims administrative remedy (note – subdivision 9 is effective December 7, 1999).
Paragraph (5) of section 10 provides that if a claimant is under a legal disability when the claim accrues, the claim may be served and filed within two years after the removal of the disability
4) What is a Notice of Intention to File a Claim?
A Notice of Intention to File a Claim is an optional document that a potential claimant may serve upon the defendant to extend the time period to serve and file a claim. Generally, service (by an authorized method) of a Notice of Intention within the time period provided for filing a Claim extends the deadline for serving and filing a Claim as follows:
wrongful death – two years from date of death.
negligence or other unintentional tort – two years from accrual of claim.
intentional tort – one year from accrual of claim.
breach of contract and any type of claim not specified in section 10- two years from accrual.
Note that a Notice of Intention is not filed with the Clerk of the Court — it is the act of service upon the Attorney General that extends the period in which to serve and file the Claim. Note also that where the defendant is an entity other than the State of New York, that entity must be served with the Notice of Intention in addition to the Attorney General.
5) What information must a Claim or a Notice on Intention contain?
Section 11(b) of the Court of Claims Act provides that a Claim “shall state the time when and place where such claim arose, the nature of same, and the items of damages or injuries claimed to have been sustained and the total sum claimed.” A Notice of Intention must contain the same information except that the items of damages or injuries and the amount claimed need not be stated.
There are a number of appellate and trial court decisions addressing the question of how much information need be provided in Claims and Notices of Intention and how specific a claimant need be in providing the location where the claim accrued and the nature of the claim. The general rule is that the Claim or Notice of Intention must be specific enough to give the State notice of what the lawsuit is about and to allow for a prompt and complete investigation by the State. In addition, a Claim must set forth sufficient allegations of fact to state a cause of action.
6) What happens once a Claim is filed?
When a claim is filed, the claimant’s attorney, or pro se (self-represented) claimant, will receive a letter from the Chief Clerk acknowledging the claim’s filing, assigning a claim number and advising of the judge to whom the claim has been assigned. A Claim’s venue is determined by the county where it accrued.
We hope the above information has been helpful and if there are any further questions (e.g. New York City claims…), please write or call in and let us know! If we don’t have it, we’ll find it.
BNI Investigators: Street smart: Net savvy.
I look forward to any comments you may have or and questions I can answer for you. Feel welcome to order free back-volumes (listed below).
Lina M. Maini
Editor, The Beacon Bulletin
CEO, Beacon Network Investigations, Inc.
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