New York State Court of Claims

New York State Court of Claims

REYES v. THE STATE OF NEW YORK, #2000-007-008, Claim No. 98872, Motion No. M-61396


Synopsis


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

Case Information

UID:
2000-007-008
Claimant(s):
JOEL REYES
Claimant short name:
REYES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98872
Motion number(s):
M-61396
Cross-motion number(s):

Judge:
John L. Bell
Claimant's attorney:
JOEL REYES, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL(GLENN C. KING, ESQ., Staff Attorney, of Counsel)
Third-party defendant's attorney:

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

Official citation:

Appellate results:

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 Glenn
C. King, Esq., Annexed Exhibits 1, 2, 3

Filed Papers: Claim, Answer 4, 5

On May 23, 1998, claimant, an inmate, was assaulted by another inmate while in the north yard at
Clinton Correctional Facility
. He served a notice of intention upon the Attorney General on July 21, 1998. The notice of intention was served by certified mail, return receipt requested. A claim was subsequently served by regular mail on August 27, 1998. In its answer, defendant asserted that the court lacked jurisdiction because the claim had been improperly served. Defendant now moves 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 include a copy of the envelope in which the claim was mailed to the Attorney General. The postage on the envelope reflects that the claim was sent by regular mail. Defendant has demonstrated that the claim was not 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 dismissal motion 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