New York State Court of Claims

New York State Court of Claims

WHITNEY v. THE STATE OF NEW YORK, #2000-004-537, Claim No. 98926, Motion No. M-62409


Synopsis


State's motion to dismiss, granted

Case Information

UID:
2000-004-537
Claimant(s):
FREEMAN WHITNEY
Claimant short name:
WHITNEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98926
Motion number(s):
M-62409
Cross-motion number(s):

Judge:
JEROME F. HANIFIN
Claimant's attorney:
FREEMAN WHITNEY, 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:
October 25, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant 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 September 8, 1998 1

Verified Answer, filed October 16, 1998 2

Notice of Motion, filed September 22, 2000 3


Affirmation of Carol A. Cocchiola, AAG, in support of
motion dated September 20, 2000, with attached exhibits 4

Affidavit of Service, sworn to September 20, 2000 5

Claimant seeks damages for personal property lost allegedly as a result of the negligence


of the State. (Paper No. 1)



State's counsel affirms, in pertinent part:

3. Claimant served a Notice of Intention to File a Claim upon the Attorney General by regular mail, which was received in the Albany Office of the Attorney General on July 1, 1998. 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.

4. The Claim was thereafter served upon the Attorney General by regular mail, and was received in the Albany Office on September 10, 1998. Attached hereto as Exhibit B is a copy of the Claim, as well as a copy of the regular mail date-stamped envelope.

5. Defendant, State of New York, answered the Claim on or about October 14, 1998, asserting affirmative defenses, including lack of subject matter jurisdiction and personal jurisdiction on the ground that both the Notice of Intention to File a Claim and the Claim were improperly served. A copy of the Verified Answer is attached hereto as Exhibit C.

6. In light of the fact that the claimant failed to serve the Claim either personally or by certified mail, return receipt requested, as required by law, the Claim should be dismissed.

7. This Court thus lacks subject matter jurisdiction over this Claim and personal jurisdiction over the defendant as a result of the improper service of the pleadings.

(Paper No. 4)



Section 11 (a) (i) of the Court of Claims Act provides, in pertinent part;

The Claim shall be filed with the clerk of the court; and...a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court. Any notice of intention shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for service upon the attorney general.



Service of both the Notice of Intention and the Claim was improper.


Claimant, though served, has not opposed the State's motion.


The Court must dismiss the Claim. The 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 affirmative defenses with regard to service with particularity in its Verified Answer as required (Paper No. 2, AFFIRMATIVE DEFENSES THIRD through FIFTH) (see, Court of Claims Act § 11 [c]).


In light of the foregoing, it is


ORDERED that motion No. M-62409 is GRANTED; and it is


ORDERED that Claim No. 98926 is DISMISSED.


ENTER:


October 25, 2000
Binghamton, New York

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