New York Court of Claims Act 11(A)(I)

Court of Claims Act 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in Section 10 of the Court of Claims Act, either personally or by certified mail, return receipt requested. The statute further provides that service by certified mail, return receipt requested, is not complete until the Claim or Notice of Intention to File a Claim is received by the Attorney General. It is well established that failure to timely serve the Attorney General in strict compliance with Court of Claims Act 11 gives rise to a jurisdictional defect (see Finnerty v. New York State Thruway Auth., 75 NY2d 721, 723, 550 N.E.2d 441, 551 N.Y.S.2d 188 [1989]; Matter of Dreger v. New York State Thruway Auth., 177 AD2d 762, 763, 575 N.Y.S.2d 743 [3d Dept 1991], affd 81 NY2d 721, 609 N.E.2d 111, 593 N.Y.S.2d 758 [1992]; Suarez v. State of New York, 193 AD2d 1037, 1038, 598 N.Y.S.2d 381 [3d Dept 1993]). Pursuant to Court of Claims Act 11(c), however, any such defect is waived unless it is raised with particularity as an affirmative defense either by motion to dismiss prior to service of the responsive pleading, or in the responsive pleading itself (see Knight v. State of New York, 177 Misc 2d 181, 183, 675 N.Y.S.2d 830 [Ct Cl 1998]).