New York State Court of Claims

New York State Court of Claims

DEGRAFFENRIEDT v. THE STATE OF NEW YORK, #2000-005-546, Claim No. 96641, Motion No. M-62279


Synopsis


The claim was served by regular mail, therefore Defendant's Motion to Dismiss for failure to comply with Court of Claims Act §11(b) is granted.

Case Information

UID:
2000-005-546
Claimant(s):
KENNETH DEGRAFFENRIEDT
Claimant short name:
DEGRAFFENRIEDT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96641
Motion number(s):
M-62279
Cross-motion number(s):

Judge:
Donald J. Corbett, Jr.
Claimant's attorney:
Kenneth DegraffenriedtPro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Carla T. Rutigliano, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 13, 2000
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On September 13, 2000, the following papers, numbered 1 to 4, were read on motion by Defendant for dismissal of the claim:

1, 2 Notice of Motion, Affirmation and Exhibits Annexed

3, 4 Filed Papers: Claim, Answer

Upon the foregoing papers this motion is granted.

The instant claim seeks damages for personal injuries sustained when Claimant was allegedly assaulted by a fellow inmate on or about May 25, 1997.

A notice of intention to file a claim was served on the Defendant on or about July 3, 1997. The claim herein was served on Defendant on or about July 23, 1997, allegedly by regular mail. In its Answer dated August 26, 1997, the Defendant raised with particularity, as its Third Affirmative Defense, the lack of jurisdiction due to improper service of the claim in that it was delivered by regular mail, instead of personal service, or certified mail, return receipt requested, as required by Court of Claims Act §11(a).

Claimant has not refuted these contentions, nor has he opposed the relief sought and I find that the Defendant properly preserved this jurisdictional defense (§11[c]). Generally, the use of ordinary mail to serve a claim upon the Attorney General is insufficient to acquire jurisdiction over the State (Bogel v State of New York, 175 AD2d 493; Byrne v State of New York, 104 AD2d 782, lv denied, 64 NY2d 607). Failure to timely comply with the statutory filing requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal (Buckles v State of New York, 221 NY 418; Byrne v State of New York, supra). This defect was timely and properly raised and preserved with particularity by the State in its answer in accordance with Court of Claims Act §11(c). Absent a showing by Claimant that he served the claim personally or by certified mail, return receipt requested, the claim is jurisdictionally defective and must be dismissed.

The motion is granted and the claim dismissed.


September 13, 2000
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims