New York State Court of Claims

New York State Court of Claims

THOMPSON v. THE STATE OF NEW YORK, #2000-007-007, Claim No. 98384, Motion No. M-61381


Synopsis


Claim dismissed for lack of jurisdiction because it was served by regular mail.

Case Information

UID:
2000-007-007
Claimant(s):
LOUIS THOMPSON
Claimant short name:
THOMPSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98384
Motion number(s):
M-61381
Cross-motion number(s):

Judge:
John L. Bell
Claimant's attorney:
LOUIS THOMPSON, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL(EILEEN E. BRYANT, ESQ., Assistant Attorney General, of Counsel)
Third-party defendant's attorney:

Signature date:
April 11, 2000
City:
Plattsburgh
Comments:

Official citation:

Appellate results:
affirmed - Third Dept., 9/27/2000
See also (multicaptioned case)



Decision


Defendant has made an application for an order dismissing the claim upon the ground that the court lacks jurisdiction. The following papers were read and considered by the court:

Notice of Motion, Affirmation of Eileen
E. Bryant, Esq., Annexed Exhibits 1, 2, 3


"Notice of Motion for Appearance,"

Affidavit of Claimant, Proposed
Judgment 4, 5, 6

Filed Papers: Claim, Answer 7, 8

Claimant, an inmate, alleges that his hot pot was destroyed as a result of defendant's negligence on February 11, 1998[1] at
Clinton Correctional Facility
. A notice of intention was served on May 15, 1998 and a claim was served on May 29, 1998. In its answer, defendant asserted, among other things, that the court lacked jurisdiction because both the notice of intention and claim were served by regular mail. Defendant has now moved to dismiss upon such ground.

Court of Claims Act § 11(a) provides, in pertinent part, that 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. Service of a claim upon the Attorney General by regular mail does not comply with the requirements of the statute and such service is therefore not adequate to acquire jurisdiction over the State (Philippe v State of New York, 248 AD2d 827; Bogel v State of New York, 175 AD2d 493). If the method of service upon the Attorney General does not comply with the statute and the State properly asserts such defect as a defense, the court does not have discretion to disregard the defect (see, Court of Claims Act § 11[c]; Calco v State of New York, 165 AD2d 117, lv denied 78 NY2d 852).

Defendant's exhibits included, among other things, copies of envelopes in which the notice of intention and claim were mailed to the Attorney General. The postage on the envelopes reflects that the documents were sent by regular mail. Defendant has demonstrated that neither the notice of intention nor the claim was properly served. The jurisdictional defect regarding the method of service was asserted with particularity in defendant's answer. Defendant has established that the court lacks jurisdiction over the claim and therefore defendant's motion to dismiss must be granted.

It is

ORDERED that defendant's motion is granted and the claim is dismissed.

April 11, 2000
Plattsburgh, New York

HON. JOHN L. BELL
Judge of the Court of Claims



[1]
The exact date of the purported negligence is not clear. According to defendant, claimant alleged an accrual date of February 22, 1998 in his notice of intention.