New York State Court of Claims

New York State Court of Claims

QUINONES v. THE STATE OF NEW YORK, #2000-013-034, Claim No. 98069, Motion No. M-62042


Synopsis


Defendant's motion to dismiss on the grounds that Claimant failed to serve his claim personally or by certified mail, return receipt requested pursuant to Court of Claims Act §11(a) is granted and the claim is dismissed.

Case Information

UID:
2000-013-034
Claimant(s):
ALBERTO QUINONES
Claimant short name:
QUINONES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98069
Motion number(s):
M-62042
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
ALBERTO QUINONES, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: CAROL A. COCCHIOLA, ESQ. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 24, 2000
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


On August 16, 2000, the following papers were read on Defendant's motion to dismiss the claim:

1. Notice of Motion

2. Affirmation in Support and Annexed Exhibits


In this action, Claimant seeks damages for the alleged interference with the processing and delivery of his magazines while he was confined to the Southport Correctional Facility. He filed his claim on March 30, 1998 and transmitted it by regular mail to the Attorney General, who received in on March 27, 1998.

Defendant moves to dismiss the claim on the grounds that Claimant did not comply with the service requirements of Court of Claims Act §11(a) because he failed to serve his claim personally or by certified mail, return receipt requested, on the Attorney General.

Defendant preserved this defense by raising it with particularity in its answer, which it served on Claimant in a timely fashion on April 27, 1998, and filed with the Court on April 30, 1998 (see, Court of Claims Act §11[c][ii]). Claimant has not submitted any proof that he complied with the service requirements of Section 11(a). Indeed, he has not even responded to Defendant's motion. There is an affidavit of service on file with the Clerk of the Court regarding this claim which indicates that the claim was "served" upon the Attorney General by regular mail only. However, the Court of Claims Act requires service upon the Attorney General by certified mail, return receipt requested (see, Court of Claims Act §11[a]; Hodge v State of New York, 213 AD2d 766). This affidavit, therefore, is not sufficient to raise a factual issue as to whether Defendant was properly served.

The motion is granted. Claim No. 98069 is dismissed in its entirety.



October 24, 2000
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims