New York State Court of Claims

New York State Court of Claims

BONDS v. THE STATE OF NEW YORK, #2000-015-015, Claim No. 098090, Motion No. M-61071


Synopsis


Service of a claim upon the Attorney General by ordinary mail deprives the Court of jurisdiction.

Case Information

UID:
2000-015-015
Claimant(s):
JOHNNIE BONDS
Claimant short name:
BONDS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
098090
Motion number(s):
M-61071
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Johnnie Bonds, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Patrick B. Sardino, Esquire Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 28, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


The motion of the defendant for an order dismissing the claim for lack of jurisdiction is granted. In a claim filed on April 3, 1998, claimant, an inmate appearing pro se, alleges that on April 24, 1997 certain items of his personal property were lost during his transfer from Camp Georgetown to Marcy Correctional Facility. The fifth affirmative defense in the answer sets forth with the requisite specificity the defense that the service of the claim was defective in that it was delivered by ordinary mail (Villa v State of New York, 228 AD2d 930). By this motion, defendant seeks dismissal upon the ground that the Court lacks jurisdiction due to the defective service of the claim.

Defense counsel concedes that a notice of intention to file a claim was served upon the Attorney General by certified mail, return receipt requested, on July 23, 1997. However, defendant points out that the claim was delivered to the Attorney General by regular mail on April 3, 1998. The motion papers contain a copy of the envelope in which the claim was received and that envelope does not reflect service by certified mail, return receipt requested. More telling, the claimant's affidavit of service of the claim does not state that service was by certified mail, return receipt requested, as does his affidavit of service for the notice of intention. The service of a claim upon the Attorney General by ordinary mail rather than personally or by certified mail, return receipt 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).


March 28, 2000
Saratoga Springs, New York

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


The Court considered the following papers:
  1. Notice of motion dated January 14, 2000;
  2. Affirmation of Patrick B. Sardino dated January 14, 2000, with exhibits;
  3. "Rebuttal" dated February 2, 2000;
  4. Affidavit of Johnnie Bonds sworn to February 1, 2000;
  5. Claim filed on April 3, 1998;
  6. Answer filed on May 14, 1998.