New York State Court of Claims

New York State Court of Claims

COLON v. New York, #2000-015-010, Claim No. 101523, Motion No. M-61053


Synopsis


The subsequent proper service of a claim upon the Attorney General will not serve to give the Court jurisdiction of a prior claim that was served upon the Attorney General by ordinary mail.

Case Information

UID:
2000-015-010
Claimant(s):
JUAN COLON
Claimant short name:
COLON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101523
Motion number(s):
M-61053
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Juan Colon, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, Esquire, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 8, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The motion of the defendant for an order pursuant CPLR 3211 dismissing the claim for lack of personal and subject matter jurisdiction is granted. This is a claim by a pro se inmate alleging that on June 30, 1999 at the Oneida Correctional Facility the medical department failed to refill his prescription for a blood pressure medication resulting in claimant being without the medication for five days. It is alleged in the claim that as a result of the failure to provide claimant his medication he sustained abnormal blood pressure and suffered a mild stroke. The claim alleges that a notice of intention to file a claim was served upon the Attorney General on August 16, 1999. A copy of the claim was served upon the Attorney General by ordinary mail and received by him on December 6, 1999.

By this motion, defendant asserts that the Court lacks personal jurisdiction because the claim was served by ordinary mail and also lacks subject matter jurisdiction because the claim fails to set forth the place, time and date when the claim arose as required by Court of Claims Act § 11 (b). In his opposing affidavit, claimant swears that he served a copy of the claim upon the Attorney General by certified mail, return receipt requested, on January 24, 2000, thus curing the jurisdictional defect. Service of the claim upon the Attorney General by ordinary mail rather than personally or by certified mail, return requested, is insufficient to acquire jurisdiction over the State requiring the granting of the dismissal motion (Philippe v State of New York, 248 AD2d 827). While claimant may be free pursuant to Court of Claims Act § 10 (3) to properly serve and file a claim for up to two years after June 30, 1999 given proper service of a notice of intention to file a claim upon the Attorney General within 90 days of the time that the claim accrued, that action will not serve as a basis to defeat the present motion to dismiss Claim No. 101523 which, it is uncontested, was not served in the manner required by the Court of Claims Act.




March 8, 2000
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. The notice of motion dated January 12, 2000;
  2. Affirmation of G. Lawrence Dillon dated January 12, 2000, with exhibits;
  3. "Claimant's Reply to Notice of Motion to Dismiss Claim" dated January 17, 2000;
  4. Affidavit of Juan Colon sworn to January 24, 2000, with exhibit.