New York State Court of Claims

New York State Court of Claims

ANDERSON v. THE STATE OF NEW YORK, #2000-001-043, Claim No. 102404, Motion No. M-61848


Synopsis


Defendant's motion for an order of dismissal is granted.

Case Information

UID:
2000-001-043
Claimant(s):
KYLE ANDERSON
Claimant short name:
ANDERSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102404
Motion number(s):
M-61848
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Kyle Anderson, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Eileen E. Bryant, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
August 4, 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 of dismissal: Notice of Motion, dated June 5 and filed June 9, 2000; Affirmation in Support of Eileen E. Bryant, Esq., AAG, dated June 5 and filed June 9, 2000, with annexed Exhibits A and B; and Letter in Opposition of Kyle Anderson, pro se, undated and received July 5, 2000, with annexed exhibits.

Claimant Kyle Anderson ("claimant") alleges that he was assaulted by a fellow inmate at Coxsackie Correctional Facility on February 16, 2000. A notice of intention to file a claim was served on the Attorney-General on April 27, 2000 (Affirmation in Support of Eileen E. Bryant, Esq., AAG, dated June 5 and filed June 9, 2000 ["Bryant Aff."], Exh. A), and the claim was subsequently served on May 2, 2000 (id., Exh. B). In lieu of an answer, defendant State of New York ("defendant") has moved for an order dismissing the claim because of improper service.

A claimant's failure to serve a claim on 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 the Court of Claims 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 her motion, counsel for defendant has submitted as an exhibit photocopies of the front and back of the envelope in which the claim was received on May 2, 2000, establishing that only regular mail postage (fifty-five cents) was used (Bryant Aff., Exh. B). The notice of intention, however, had been served on April 27, 2000 by certified mail, return receipt requested (id., Exh. A).

In opposition to the motion, claimant has submitted a certified mail return receipt ("green card"), which is acknowledged by the Attorney-General's Office (Exhibit annexed to Letter in Opposition of Kyle Anderson, pro se, undated and received July 5, 2000 ["Anderson Letter"]). The receipt is dated April 27, 2000, however, and its identification number (P 376 680 439) corresponds to the identification number on the envelope in which defendant received claimant's notice of intention (Bryant Aff., Exh. A).

Section 11 (a) of the Court of Claims Act requires personal service or service by certified mail, return receipt requested of both a notice of intention, when used, and the ensuing claim. Since claimant appears to have properly served a timely notice of intention on the Attorney-General, he still has time to commence an action by properly serving and filing a claim (Court of Claims Act § 10 [3]). This claim, however, is jurisdictionally defective.

The Court grants defendant's motion and dismisses Claim No. 102404.

August 4, 2000
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims