New York State Court of Claims

New York State Court of Claims

NARVAEZ v. THE STATE OF NEW YORK, #2000-015-018, Claim No. 101509, Motion Nos. M-60970, M-60911, M-61080


Synopsis


A claim served by ordinary mail upon the Attorney General deprives the Court of jurisdiction to adjudicate the claim.

Case Information

UID:
2000-015-018
Claimant(s):
FRANKLIN NARVAEZ
Claimant short name:
NARVAEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101509
Motion number(s):
M-60970, M-60911, M-61080
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Franklin Narvaez, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 6, 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 on the basis that the claim was served upon the Attorney General by regular mail is granted. The motion of the claimant for an order permitting him to proceed as a poor person is denied as moot. The motion of the claimant for an order allowing him to correct the defect in service upon the defendant and to verify the claim is denied. This is a claim by an inmate appearing pro se to recover damages for personal injuries allegedly sustained through the negligence of employees of the Department of Correctional Services (the Department) in permitting him to be assaulted by another inmate. The incident occurred at approximately 9:50 a.m. on January 4, 1999 in the laundry room area of Unit C-2 at Marcy Correctional Facility. A notice of intention to file a claim was served upon the Attorney General by certified mail, return receipt requested on February 24, 1999. The notice of intention related to an alleged assault which occurred at approximately 10:00 a.m. on January 4, 1999 at Marcy Correctional Facility and asserted that the Department of Correctional Services provided inadequate security in the area where the attack occurred. The notice referred to the assault as constituting "cruel and unusual punishment" under the Eighth Amendment and demonstrating "deliberate indifference" on the part of the Department. An unverified claim was sent to the Attorney General by ordinary mail and received by him on December 3, 1999. The second affirmative defense in the answer pleads with the requisite specificity that the Court lacks personal jurisdiction in that the service of the claim was by regular mail (Villa v State of New York, 228 AD2d 930).

The defendant seeks dismissal upon the ground, among others, that service of the claim by regular mail deprives the Court of jurisdiction to proceed. Claimant moves for relief pursuant to CPLR §2001 permitting him to cure his mistake by serving a verified copy of the claim upon the Attorney General by certified mail, return receipt requested. Claimant also states that "[t]his Court may allow claimant to correct the error committed by allowing him to file Motion For Leave To File A Late Claim upon the defendant which would cure the irregularity" (paragraph 7 of the affidavit of Franklin Narvaez sworn to January 11, 2000). In addition, there is a poor person motion before the Court.

Service of the 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). In view of the lack of personal jurisdiction, the relief requested by the claimant pursuant to CPLR 2001 is not available as the Third Department stated the applicable rule of law in the case of Matter of Vetrone v Mackin, 216 AD2d 839, 841, as follows:
Additionally, while correction of mistakes, omissions, defects or irregularities (see, CPLR 2001) are in some situations permitted, 'acquisition of personal jurisdiction is a prerequisite to the exercise of a court's discretionary power to correct an irregularity or permit prosecution of a matter brought in an improper form'.
With respect to the request for permission to file a late claim, that relief will be denied when permission to file an untimely claim is unnecessary (Sinacore v State of New York, 176 Misc 2d 1). Here, the claimant timely served a notice of intention to file a claim in compliance with the statutory requirements and, pursuant to Court of Claims Act § 10(3), has two years from January 4, 1999 in which to properly serve and file a verified claim related to that matter.

Finally, since there is no claim pending there is no basis for awarding poor person relief.


April 6, 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 to dismiss dated December 30, 1999;
  2. Affirmation of Joel L. Marmelstein dated December 30, 1999, with exhibits;
  3. Notice of motion to correct mistakes dated January 10, 2000;
  4. Affidavit of Franklin Narvaez sworn to January 11, 2000, with exhibit;
  5. "Claim" seeking poor person relief dated November 28, 1999;
  6. Affidavit of Franklin Narvaez in support of poor person relief sworn to December 1, 1999;
  7. Affirmation in opposition to poor person relief of Joel L. Marmelstein dated December 29, 1999.