New York State Court of Claims

New York State Court of Claims

CAMACHO v. THE STATE OF NEW YORK, #2000-004-527, Claim No. 94440, Motion No. M-62031


Synopsis


State's motion to dismiss granted.

Case Information

UID:
2000-004-527
Claimant(s):
PAULINO CAMACHO
Claimant short name:
CAMACHO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
94440
Motion number(s):
M-62031
Cross-motion number(s):

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

Signature date:
August 9, 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 July 26, 1996 1

Verified Answer, filed August 26, 1996 2

Notice of Motion, filed July 18, 2000 3


Affirmation of Carol A. Cocchiola, AAG, in support of motion,
dated July 14, 2000, with attached exhibits 4

Affidavit of Service, sworn to July 14, 2000 5


Although the Claim mentions negligence, a close reading reveals an alleged intentional tort of assault by Correction officers on Claimant. (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 Southport 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 I conducted of the inmate records available from the Internet web site maintained by the New York State Department of Correctional Services.

4. Claimant mailed a Notice of Intention to File a Claim to the Attorney General, which was received in the Albany Office of the Attorney General via regular mail on January 10, 1996. Attached hereto as Exhibit A is a copy of the Notice of Intention to File a Claim, as well as a copy of the regular mail date-stamped envelope. A second Notice of Intention to File a Claim was received via regular mail on February 7, 1996 at the Albany Office of the Attorney General. Attached hereto as Exhibit B is a copy of that Notice of Intention to File a Claim, together with a copy of the regular mail 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 July 24, 1996. Attached hereto as Exhibit C 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 August 23, 1996, asserting affirmative defenses including lack of subject matter jurisdiction and personal jurisdiction on the grounds that the Notices of Intention and the Claim were improperly served. A copy of the Verified Answer is attached hereto as Exhibit D.

7. Section 11 of the Court of Claims Act provides that a copy of the claim or notice of intention shall be served personally or by certified mail, return receipt requested, upon the Attorney General within the times provided in Section 10 of the Court of Claims Act. Regular mail is not a proper means of service under the statute.

8. Because the service requirements were not followed, the Court lacks jurisdiction over the defendant and/or subject matter of the claim, and the claim must 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-62031 is GRANTED, and Claim No. 94440 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. Paulino Camacho Mr. Paulino Camacho
#95-A-6150 #95-A-6150
Southport Correctional Facility Wende Correctional Facility
P.O. Box 2000 3622 Wende Road, PO Box 1187
Pine City, NY 14871 Alden, NY 14004



August 9, 2000
Binghamton, New York

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