New York State Court of Claims

New York State Court of Claims

ALBERT v. THE STATE OF NEW YORK, #2000-007-009, Claim No. 97992, Motion No. M-61418


Synopsis


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

Case Information

UID:
2000-007-009
Claimant(s):
JOSEPH L. ALBERT
Claimant short name:
ALBERT
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The court has amended the caption to reflect the proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97992
Motion number(s):
M-61418
Cross-motion number(s):

Judge:
John L. Bell
Claimant's attorney:
JOSEPH L. ALBERT, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL(SAUL ARONSON, ESQ., Assistant Attorney General, 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 Saul
Aronson, Esq., Annexed Exhibits 1, 2, 3

Filed Papers: Claim, Answer 4, 5

Claimant, an inmate, was injured on September 3, 1997 while working at his prison job at
Clinton Correctional Facility
. He alleges his right foot was injured when a wood horse he was using to support a log collapsed and the log fell on his foot. He ostensibly served a notice of intention in early October 1997. On March 16, 1998 he served a claim upon the Attorney General. In its answer, defendant asserted that the court lacked jurisdiction because the claim had been improperly served by regular mail. 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