The following papers numbered 1 through 3 were read and considered by the Court on defendant’s motion to dismiss the claim pursuant to CPLR 3211 (a) (2) and (a) (7): Notice of Motion, State’s Attorney’s Supporting Affirmation, and Exhibits 1 Claimant’s Attorney’s Affirmation in Opposition, and Exhibits 2 State’s Attorney’s Reply Affirmation 3 DECISION AND ORDER Decision The claim for wrongful death alleges that on April 25, 2019, due to defendant’s negligence, Joey Philip was injured when he fell down a defective staircase at the residential care facility where he was residing that was operated by The New York Foundling (the Foundling), located at 101 Hammond Road, Thiells, New York. He passed away as a result of his injuries on January 15, 2020. The claim is brought by John Philip, brother of the deceased, as Administrator of the Estate. Defendant moves to dismiss the claim under CPLR 3211 (a) (2) and (7), and Court of Claims Act §§11 (b) and 10 (3).1 Claimant opposes the motion. The motion is supported by an attorney’s affirmation, affidavits, the claim, Letters of Administration and other documents. The opposition is supported by an attorney’s affirmation, medical records, an affidavit and other documents. The Court will first address defendant’s argument that the claim should be dismissed under CPLR 3211 (a) (2) for lack of subject matter jurisdiction because it was not timely filed and served under Court of Claims Act §10 (2). The statute requires that a claim by an executor or administrator of a decedent, “for damages for a wrongful act, neglect or default, on the part of the state by which the decedent’s death was caused, shall be filed and served within ninety days after the appointment of such executor or administrator, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the death of the decedent.” A claim against the State is allowed only by the State’s waiver of sovereign immunity and in derogation of the common law (see Lichtenstein v. State of New York, 93 NY2d 911, 913 [1999]; Dreger v. New York State Thruway Auth., 81 NY2d 721, 724 [1992]). Consequently, the statutory requirements conditioning a claim are strictly construed and applied (see Lichtenstein, 93 NY2d at 913; Dreger, 81 NY2d at 724). Where claimant has failed to meet the statutory prerequisites, the claim must be dismissed for lack of jurisdiction (see Kolnacki v. State of New York, 8 NY3d 277, 281 [2007]). Ninety days after the date Letters of Administration were issued on February 27, 2020 (Ex. 10) would have been May 27, 2020. After applying the tolling period of 228 days resulting from then Governor Andrew Cuomo’s pandemic related Executive Orders extending periods of limitation, the filing and service date for the claim or a notice of intention was extended to January 11, 2021. In the case at bar, the notice of intention was received by the Attorney General’s Office on May 28, 2020. The claim was filed on December 7, 2021, and it was served on December 13, 2021. Defendant argues that the claim is untimely because the notice of intention was not received by the Attorney General’s Office within ninety days after appointment of the administrator, thus the two-year extension of time to file and serve the claim was not triggered. Defendant has submitted an affidavit of Jacqueline M. Riley, an Administrative Assistant with the Attorney General’s Office. Ms. Riley attests that she reviewed the records of the Attorney General’s Office and did not locate a notice of intention served by claimant. In opposition, claimant submitted an affidavit of service signed by Giorgio Gazzola and a separate affidavit of Mr. Gazzola (Exs. 12, 14). Mr. Gazzola attests that he attempted to personally serve a copy of claimant’s notice of intention at the Attorney General’s Office in White Plains on May 27, 2020, but a notice posted on the door stated that the office was not accepting “walk-in visitors at this time,” and that service of legal papers could be arranged by calling the posted number (Ex. 14). Mr. Gazzola called the number and was advised to serve the documents via mail. He then sent the document via Express Mail. The USPS tracking slip (Ex. 16) shows the document was received at the Attorney General’s Office on May 28, 2020. Defendant’s assertion that the notice of intention was not received has been sufficiently rebutted. The Court finds that the notice of intention was timely served on May 28, 2020, which was prior to the expiration of the tolling period referred to above. Therefore, the claim is timely because it was filed and served less than two years after the decedent passed away on January 15, 2020 (see Court of Claims Act §10 [2]).2 Defendant also argues that the claim should be dismissed under CPLR (a) (7) because it fails to state a cause of action against the State. “When a party moves to dismiss a complaint pursuant to CPLR 3211 (a) (7), the standard is whether the pleading states a cause of action” (Sokol v. Leader, 74 AD3d 1180, 1180-1181 [2d Dept 2010]). “In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Polite v. Marquis Marriot Hotel, 195 AD3d 965, 967 [2d Dept 2021]). ” ‘Conclusory allegations or bare legal assertions with no factual specificity are not sufficient, and will not survive a motion to dismiss’ ” (id., quoting Matter of Kenneth Cole Prods., Inc., Shareholder Litig., 27 NY3d 268, 278 [2016]). The claim (Ex. A) alleges that the decedent’s injuries and ultimate death resulted from “the failure of Defendant, THE STATE OF NEW YORK, to properly own, operate, manage, control, maintain, possess, lease, staff, and supervise the residential care facility located at 101 Hammond Road, Theills, New York 10984″ (Ex. A, 3). The claim does not identify any other agency, entity or person. More specifically, the claim alleges that on April 25, 2019, at approximately 8:30 a.m.: “Claimant’s decedent, JOEY PHILIP, was ascending the stairs from the first to the second floor, without any assistance or supervision from the residential care facility’s staff, when he fell down the stairs thereby resulting in quadriparesis due to traumatic spinal cord injury which ultimately resulted in his death on January 15, 2020. […] Said incident and Claimant’s Decedent’s injuries and damages were caused by reason of the negligence of Defendant, THE STATE OF NEW YORK, its officers, agents, servants, and/or employees […]” (Ex. A,
4, 5). The claim also alleges that defendant was negligent in allowing the stairs claimant fell down to become and remain in a defective and dangerous condition, and in failing to accommodate claimant’s needs by adding “continuous bilateral handrails” and other “adaptions” to the stairs (Ex. A, 6, p 3). These allegations regarding maintenance and “adaptions” to the stairs, and the care of decedent, are the only alleged acts of negligence. In connection with the motion to dismiss, the parties have submitted affidavits and relevant documents.3 Where the moving party offers evidentiary material, the motion must be denied unless the evidence shows that “a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it” (Sokol, 74 AD3d at 1181 [internal quotation marks omitted]). The inquiry under CPLR 3211 (a) (7) becomes whether ” ‘the materials establish conclusively that [the plaintiff] has no…cause of action’ ” (Francisco v. Kiara Foods, Inc., 197 AD3d 563, 564-565 [2d Dept 2021], quoting Hendrickson v. Philbor Motors, Inc., 102 AD3d 251, 258 [2d Dept 2012] [internal quotation marks omitted]; see Lawrence v. Graubard Miller, 11 NY3d 588, 595 [2008]). The elements of common-law negligence are a duty owed by the defendant to the plaintiff, a breach of that duty, and a showing that the breach of that duty constituted a proximate cause of the injury (see Ruiz v. Griffin,71 AD3d 1112, 1114 [2d Dept 2010]). The scope of the duty owed depends on the parties and the circumstances. Defendant argues that its evidentiary submissions show claimant has no valid cause of action because the State is not a proper party, the State did not owe the decedent a duty of care, and the State’s licensing of the residential facility where decedent was injured is a discretionary governmental act. Claimant argues that the State owed decedent a duty of care because it owned the residential facility, leased the facility to the Foundling, and under the lease the State is responsible for repairs and may enter the facility without notice to make repairs. Defendant’s submissions establish that the Dormitory Authority of the State of New York (DASNY), not defendant, leased the residential facility to the Foundling, an independent not-for-profit, and that the New York State Office for People With Developmental Disabilities (OPWDD) issued an operating certificate permitting the Foundling to operate the residential facility. In his affidavit (Ex. C), Scott Sandwick attests that he is the Director of “Real Property & Capital Finance” at OPWDD and, based on his personal knowledge and review of documents in this matter, the residential facility is “owned by the State of New York under the jurisdiction of the Dormitory Authority of the State of New York” (Sandwick Aff.,
