- 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 if I fail to comply with the time limitations for serving and filing a Claim?
- What information must a Claim or a Notice of Intention contain?
- What are the filing fees in the Court of Claims?
- What happens once a Claim is filed?
- Is the Court of Claims "Small Claims Court"?
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. The matters discussed in the following questions and answers are frequently subject to judicial interpretation. Thus, the following is intended to address some of the issues that arise in Court of Claims actions. It is not intended to be authority and is not intended to be cited as authority before any court. Practitioners and litigants must do their own research and make their own decisions. Our purpose here is merely to provide an appropriate starting point for such research.
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, the Roswell Park Cancer Institute Corporation, the Olympic Regional Development Authority 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. With the exception of actions against Roswell Park Cancer Institute Coproration sounding in tort or wrongful death, the General Municipal Law has 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 the original and two copies, together with a filing fee of $50.00 or an application for waiver or reduction of the fee with the Clerk of the Court, and
3. 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, (3) fax (limit of 50 pages) (see Filing by Fax), or (4) NYSCEF (E-Filing) system (Tort claims-Albany and New York Districts only) (see Filing by Electronic Means).
Personal service upon the State is accomplished by delivering the claim to an Assistant Attorney General at an office of the Attorney General, or by delivery to the Attorney General himself or herself. Delivery to a secretary or clerk at the Attorney General's office is not good service.
Certified mail, return receipt requested does not include express mail or registered mail, even though a return receipt is requested, and it does not include certified mail without a return receipt being requested. As with filing, service is accomplished when the claim is received by the Attorney General, not when it is mailed.
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.
Additionally, for actions sounding in tort or wrongful death against Roswell Park Cancer Institute Corporation, Public Authorities Law § 3567 requires that a Notice of Claim be served upon that corporation pursuant to General Municipal Law § 50-e before the action is commenced in the Court of Claims.
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.
(9) 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 if I fail to comply with the time limitations for serving and filing a Claim?
The Court of Claims Act provides two remedies. The most commonly used is a motion for permission to file a late claim (see §10(6) of the Court of Claims Act). The motion papers should include: (1) a notice of motion, (2) a supporting affidavit or affidavits, (3) copies of any relevant exhibits, (4) a copy of the proposed claim, and (5) an affidavit of service of the motion papers on the defendant(s). In deciding such a motion, the court considers the following factors:
- whether the delay in filing the claim was excusable;
- whether the State had notice of the essential facts constituting the claim;
- whether the State had the opportunity to investigate the circumstances underlying the claim;
- whether the claim appears to be meritorious;
- whether the failure to serve the State within the statutory period resulted in substantial prejudice to the State;
- whether the claimant has any other available remedy.
There is a substantial body of case law interpreting this statute and addressing the questions of what makes a delay excusable, how much of a showing of merit must be made, what is the meaning of "substantial prejudice," etc.
The time limit for making a motion for permission to file a late claim is the statute of limitations that would apply to a similar action against a non-governmental entity as set forth in Article 2 of the CPLR. Thus, for an intentional tort claim, the motion must be made within one year of accrual; for a medical malpractice claim, within 2 1/2 years of accrual; for a negligence claim, within three years of accrual; for a breach of contract claim, within six years of accrual. If the motion is not made before the relevant time period expires, the court cannot grant the motion.
Another option, set forth in section 10(8) of the Court of Claims Act, is a motion to treat a Notice of Intention as a Claim. The remedy is applicable where a claimant timely serves a Notice of Intention but fails to timely serve or file a Claim. The court shall may not grant such an application unless the Notice of Intention was timely served and unless the motion is made within the statute of limitations that would apply to a similar action against a non-governmental entity.
Please see our Motion Practice page
6) What information must a Claim or a Notice of 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 damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, 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.
7) What are the filing fees in the Court of Claims?
A filing fee of $50.00 is required for all claims, unless the fee is waived or reduced, upon application, based upon the claimant's financial circumstances. Either the filing fee or a waiver or reduction application must accompany the claim. Application for a waiver or reduction of the filing fee is made by filing an affidavit, stating the claimant's financial circumstances, with the Claim. Links to the forms for these affidavits are provided below.
8) 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.
Directory of Courthouse Locations
Once a claim is filed, most inquiries - e.g. as to conferences, motions, trial scheduling - should be directed to the assigned judge's chambers, rather than to the Clerk's office. Nevertheless, all papers to be filed must be sent to the Clerk's office in Albany, not to chambers, although sending "courtesy" copies to chambers is encouraged.
9) Is the Court of Claims "Small Claims Court"?
"Small Claims" courts are actually small claims parts of local courts (city courts or town or village justice courts) located in municipalities around the state. For information on small claims courts within the City of New York, see the Uniform Court System's web page Guide to the Small Claims Court. For information on town and village courts, see the UCS's page of links to Town and Village Courts. For municipal courts not listed in either of those pages, contact the appropriate city, town or village hall and ask for the small claims part of the Justice Court.
The Court of Claims is the forum for claims against the State of New York and certain State-related authorities. It has no relationship whatsoever to small claims court.