New York State Court of Claims

New York State Court of Claims

BORBON v. New York, #2000-014-507, Claim No. 101056, Motion No. M-61354


In the absence of an affidavit of service, submission by the Attorney General of a copy of the envelope in which the claim was served, in support of the defendant's unopposed motion, establishes that the claim was served by regular mail, requiring dismissal of the claim.

Case Information

BORBON, L. #98R4797
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

S. Michael Nadel
Claimant's attorney:
L. Borbon, Pro se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 7, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the defendant's motion to dismiss the claim: Notice of Motion, Affirmation in Support and Exhibits annexed. Filed papers: Claim, Answer.

The defendant renews its motion to dismiss the claim on the ground that the Notice of Intention and the claim were served by regular mail, and not either personally or by certified mail, return receipt requested, as required by Court of Claims Act § 11(a).

In support of this renewed motion, which is not opposed by the claimant[1], the Assistant Attorney General has annexed a copy of the envelope in which the claim was received by the Attorney General (Exhibit B), which establishes that it was served by regular mail.[2] Failure to serve a claim in the manner required by §11 deprives the court of jurisdiction, and requires dismissal of the claim. Hodge v State of New York, 213 AD2d 766; Dreger v New York State Thruway Authority, 81 NY2d 721.

In accordance with the foregoing, the defendant's motion is granted; the claim is dismissed.

April 7, 2000
New York, New York

Judge of the Court of Claims

[1]The only documents filed by the claimant since the defendant first moved to dismiss the claim, were a motion by the claimant to strike the Answer, and a "verified answer" which appears to be in response to the defendant's Answer. In neither document does he offer any evidence that the claim was properly served. No affidavit of service of the claim has been filed with the Court. See, §206.5(a) Uniform Rules for the Court of Claims.
[2] Also annexed to the defendant's submission is a copy of the envelope in which a Notice of Intention was received; it, too, was served by regular mail. But no objection to the method of service of the Notice of Intention was raised in the defendant's Answer. Court of Claims Act §11(c).