New York State Court of Claims

New York State Court of Claims

LIBBETT v. THE STATE OF NEW YORK, #2000-005-529, Claim No. 97634, Motion No. M-61899


Defendant's motion to dismiss claim for improper service by regular mail is granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Donald J. Corbett, Jr.
Claimant's attorney:
Eugene C. Libbett 97 B 1930Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Patrick B. Sardino, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 17, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


On August 16, 2000, the following papers, numbered 1 to 7, were read on motion by Defendant for dismissal of the claim:

1, 2 Notice of Motion, Affirmation and Exhibit Annexed

3 Opposing Affidavit

4 Reply Affirmation

5, 6, 7 Filed Papers: Claim, Amended Claim, Answer

Upon the foregoing papers, this motion is granted.

The claim herein was allegedly served upon the Defendant on January 15, 1998, by regular mail in contravention of the specified service requirements of Court of Claims Act §11(a). The Defendant preserved as the Sixth Affirmative Defense of its Answer, with particularity, the improper service of the claim (Court of Claims Act §11), as well as the alleged insufficiency of the allegation as to the nature of the claim and items of damage.

Claimant asserts that the motion to dismiss here is time-barred under CPLR 3211(e) because a motion alleging grounds under CPLR 3211(a)(2), (7) or (10) must be made within 60 days of service of the responsive pleadings. Claimant asserts that the 60 day period for challenging the manner of service pursuant to CPLR 3211(a)(2) expired over two years ago and thus the motion should be denied. Claimant offers no support whatsoever to the assertion that it is "well held that the notice of intention and claim are the equivalent of the summons and complaint referred to in the text of the CPLR."

This argument is rejected. The Court of Claims Act §11(c) specifically requires objections or defenses based upon time limitations or manner of service to be raised, with particularity, either in a pre-answer motion or in the answer. The failure to do so waives the defenses. The 60 day limitation of CPLR 3211(e) does not apply to a motion to dismiss for allegedly improper service in the Court of Claims.

Claimant does not dispute the improper service of the claim, and, despite notice thereof in the Sixth Affirmative Defense, he did nothing to remedy the service insufficiency. Accordingly, to the extent that the motion seeks dismissal of the claim for improper service by regular mail in derogation of the specific requirements of §11(a), the motion is granted and the claim is dismissed.

In Claimant's Affidavit in Opposition, he asserts that pursuant to §10(8)(a) the court can deem a notice of intention, if properly served, to be a claim. Claimant fails to demonstrate that a notice of intention was properly and timely served, to wit, by certified mail, return receipt requested (§11[a]). His mere assertion of timely and proper service, without any proof of service, and with no copy of said notice of intention, is simply inadequate. The remedy Claimant seeks is unavailable under these circumstances, since no Notice of Intention has been provided to the court.

On July 10, 2000, the Clerk filed Claimant's Amended Claim, which Claimant sought leave to file to cure the alleged insufficiencies as to the nature of the claim and the items of damage. While I appreciate that Claimant is a pro se litigant, the jurisdictional requirements for the Court of Claims are strict. Although Claimant may have overcome the pleading insufficiencies with his amended claim, he has not and cannot overcome the improper service of his claim by regular mail, which deprives this Court of jurisdiction. Neither an amended claim, or deeming a notice of intention (if one exists) to be a claim (§10[8]) can overcome the jurisdictional deficiency of improper service (§11) of the claim. Absent a formal motion pursuant to §10(8), with proof of service, etc., or a late claim application (§10[6]), there is no relief available to the Claimant. The motion is granted and the claim is dismissed.

August 17, 2000
Rochester, New York

Judge of the Court of Claims