The following papers were read and considered on defendant's motion for an
order pursuant to CPLR 3211(a) (2) dismissing the claim: Notice of Motion,
dated March 17 and filed March 21, 2000; Affirmation in Support of Kathleen M.
Resnick, Esq., AAG, dated March 17 and filed March 21, 2000, with annexed
Exhibits A and B; Letter from claimant Roosevelt Hall, pro se, dated
March 27 and received April 11, 2000; and the claim, sworn to February 7 and
filed February 10, 2000.
Claimant Roosevelt Hall ("claimant") alleges that he was denied due process of
law by a determination of the Superintendent of the Butler Correctional
Facility, which prevented him from having contact visitation with Sharon J.
Simspon from October 9, 1999 to April 9, 2000. The claim was served on the
Attorney-General on February 10, 2000 (Affirmation in Support of Kathleen M.
Resnick, Esq., AAG, dated March 17 and filed March 21, 2000 ["Resnick Aff."],
Exhibit A), and filed with the Court on the same day.
In lieu of an answer, defendant State of New York ("defendant" or "the State")
has moved for an order dismissing the claim on the ground that the claim was
improperly served. A claimant's failure to serve the Attorney-General
personally or by certified mail, return receipt requested, as required by
section 11 (a) of the Court of Claims Act, is a fatal jurisdictional defect and
deprives this Court of the power to hear the claim (Dreger v New York State
Thruway Auth., 81 NY2d 721, 724; Bogel v State of New York, 175 AD2d
In support of the motion, counsel for defendant has submitted as an exhibit
photocopies of the front and back of the envelope in which the claim was
received, establishing that only regular mail postage (thirty-three cents) was
used (Resnick Aff., Exhibit B). In response, claimant concedes his error by
informing the Court that he has "recently re-served the Attorney General's
Office [and] an Affidavit of Service will be forthcoming upon my receipt of the
green verification card" (Letter from claimant Roosevelt Hall, pro se,
dated March 27 and received April 11, 2000). Serving the claim on the
Attorney-General for a second time, if done properly and timely in conjunction
with a proper and timely filing of the claim (see Court of Claims Act
§§ 10 , 10 ), may commence an identical and viable claim on the
date of service and filing, but it cannot serve to remedy the initial defect in
Defendant's motion is granted; Claim No. 101938 is dismissed.