New York State Court of Claims

New York State Court of Claims

CASIANO v. STATE OF NEW YORK, #2000-006-954, Claim No. 102049, Motion Nos. M-62638, CM-62910


Synopsis



Case Information

UID:
2000-006-954
Claimant(s):
RODOLFO CASIANO
Claimant short name:
CASIANO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102049
Motion number(s):
M-62638
Cross-motion number(s):
CM-62910
Judge:
EDGAR C. NeMOYER
Claimant's attorney:
RODOLFO CASIANO, PRO SE
Defendant's attorney:
ELIOT SPITZER, ATTORNEY GENERAL
By: James L. Gelormini, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 11, 2001
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is claimant's motion for an order of this court permitting him to amend his claim pursuant to CPLR Rule 3025, and defendant's cross-motion for an order of the court dismissing the claim pursuant to CPLR Rule 3211(a)(8) on the ground the court does not have jurisdiction of the claim. In deciding this motion the court has read and reviewed the following papers:
  1. Notice of motion dated October 9, 2000 and filed October 26, 2000.
  1. Claimant's affidavit sworn to October 23, 2000 in support of the motion.
  1. Proposed amended claim verified October 9, 2000, along with exhibits attached thereto.
  1. Claim verified February 28, 2000 and filed March 2, 2000.
  1. Notice of cross-motion dated December 29, 2000 and filed January 4, 2001.
  1. Affirmation of James L. Gelormini, Esq., Assistant Attorney General, dated December 29, 2000, along with exhibits attached thereto, in support of the cross-motion and in opposition to the motion.

This claim appears to have accrued on May 7, 1999 while claimant was an inmate at Attica Correctional Facility. This is an unjust confinement claim resulting from claimant's confinement to the Special Housing Unit and keeplock status, after a disciplinary hearing found claimant guilty of possessing contraband. Claimant was so confined between February 25, 1999 to May 7, 1999. Claimant has based his unjust confinement claim on the fact that his disciplinary hearing was reversed, and his record expunged.

By this cross-motion to dismiss, the defendant alleges the claim was served upon the Attorney General by regular mail, and therefore, the court lacks jurisdiction of the claim. The third affirmative defense of the defendant's answer sets forth this jurisdictional objection with particularity. Therefore, defendant is in compliance with Section 11(c) of the Court of Claims Act and has not waived this jurisdictional objection.

In support of its allegation that the claim was served by regular mail, defendant has attached to its cross-motion papers, as Exhibit 1, a copy of the envelope in which the claim was received by the Attorney General. This envelope shows a postmark of February 29, 2000, with postage of 33 cents. This postage would indicate mailing by regular mail. The envelope bears no indicia of mailing by certified mail, return receipt requested. Based upon the foregoing, the court finds that the claimant served the Attorney General with the claim by regular mail.

Section 11(a) of the Court of Claims Act requires the claim to be served upon the Attorney General either personally or by certified mail, return receipt requested. A claim which is not served in this manner is subject to dismissal because of the absence of personal jurisdiction over the defendant. Adkison v State of New York, 226 AD2d 409; Bogel v State of New York, 175 AD2d 493; Baggett v State of New York, 124 AD2d 969.

Accordingly, it is

ORDERED, that the cross-motion of the defendant is hereby granted and the claim is dismissed, and it is further

ORDERED, that claimant's motion is denied on the ground that it is moot.


January 11, 2001
Buffalo, New York

HON. EDGAR C. NEMOYER
Judge of the Court of Claims