New York State Court of Claims

New York State Court of Claims

HALL v. THE STATE OF NEW YORK, #2000-001-029, Claim No. 101938, Motion No. M-61389


Synopsis


Defendant's motion for an order pursuant to CPLR 3211(a) (2) dismissing the claim is granted

Case Information

UID:
2000-001-029
Claimant(s):
ROOSEVELT HALL
Claimant short name:
HALL
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The original claim names "Glenn Goord, N.Y.S.D.O.C. Commissioner" as the only defendant. The Court of Claims has no jurisdiction to hear claims against individuals or entities other than the State of New York; therefore, the Court sua sponte has amended the caption to reflect the only proper defendant, the State of New York (see, Court of Claims Act § 9).
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101938
Motion number(s):
M-61389
Cross-motion number(s):

Judge:
SUSAN PHILLIPS READ
Claimant's attorney:
Roosevelt Hall, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Kathleen M. Resnick, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 26, 2000
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

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 493).

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 [3], 10 [4]), may commence an identical and viable claim on the date of service and filing, but it cannot serve to remedy the initial defect in service.

Defendant's motion is granted; Claim No. 101938 is dismissed.


June 26, 2000
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims