New York State Court of Claims

New York State Court of Claims

LONG v. THE STATE OF NEW YORK, #2000-004-526, Claim No. 95593, Motion No. M-62019


Synopsis


State's motion to dismiss, granted

Case Information

UID:
2000-004-526
Claimant(s):
LINCOLN LONG
Claimant short name:
LONG
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
95593
Motion number(s):
M-62019
Cross-motion number(s):

Judge:
JEROME F. HANIFIN
Claimant's attorney:
LINCOLN LONG, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER,
ATTORNEY GENERAL
BY: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
August 8, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The State moves to dismiss the Claim on the ground that Claimant has failed to comply with the requirements set forth in Court of Claims Act § 11 (a).


The following papers were considered by the Court:
Claim, filed February 5, 1997 1
Verified Answer, filed March 7, 1997 2
Notice of Motion, filed July 14, 2000 3

Affirmation of Carol A. Cocchiola, AAG, in support of motion,
dated July 12, 2000, with attached exhibits 4

Affidavit of Service, sworn to July 12, 2000 5


The Claim is for the alleged negligence of the State in failing to prevent an assault upon Claimant by another inmate at the Elmira Correctional Facility. (Paper No. 1)


State's counsel affirms in pertinent part:
3. I have mailed copies of the papers filed in support of this motion to claimant at the Auburn Correctional Facility, where, upon information and belief, claimant is currently incarcerated. The source of my information and the grounds for my belief are a search of the inmate records available from the Internet web site maintained by the New York State Department of Correctional Services.

4. On November 1, 1996, claimant served a Notice of Intention to File a Claim upon the Attorney General by certified mail, return receipt requested. Attached hereto as Exhibit A is a copy of the Notice of Intention to File a Claim, as well as a copy of the certified mail, return reciept [sic] requested date-stamped envelope.

5. The Claim was thereafter served upon the Attorney General by regular mail, and was received in the Albany Office of the Attorney General on February 7, 1997. Attached hereto as Exhibit B is a copy of the Claim, as well as a copy of the regular mail date-stamped envelope.

6. Defendant, State of New York, answered the Claim on or about March 5, 1997, asserting affirmative defenses, including lack of subject matter jurisdiction and personal jurisdiction on the ground that the claim was improperly served. A copy of the Verified Answer is attached hereto as Exhibit C.

7. In light of the fact that the claimant failed to serve the Claim either personally or by certified mail, return reciept [sic] requested, as required by Section 11 (a) of the Court of Claims Act, the Claim should be dismissed.

(Paper No. 4)

Claimant has not opposed the motion.


The Court must dismiss the Claim as service by regular mail is improper under Court of Claims Act § 11 (a). The filing and service requirements of the Court of Claims Act are jurisdictional in nature and, therefore, must be strictly construed (see Greenspan Bros. v State of New York, 122 AD2d 249; Byrne v State of New York, 104 AD2d 782 lv denied 64 NY2d 607). Defendant raised the "objection" with particularity in its Verified Answer as required (Paper No. 2) (see, Court of Claims Act § 11 [c]; Uniform Rules for the Court of Claims, 22 NYCRR § 206.7 [a]).


ORDERED that the State's Motion No. M-62019 is GRANTED, and Claim No. 95593 is DISMISSED. The Clerk of the Court is directed to mail a copy of this Decision and Order to Claimant at the following two addresses:
Mr. Lincoln Long Mr. Lincoln Long
#94 A 5444 #94 A 5444
Auburn Correctional Facility Clinton Correctional Facility
135 State Street Box 2001
Auburn, NY 13021 Dannemora, NY 12929



August 8, 2000
Binghamton, New York

HON. JEROME F. HANIFIN
Judge of the Court of Claims