New York State Court of Claims

New York State Court of Claims

SMILEY v. THE STATE OF NEW YORK, #2000-015-081, Claim No. 102311, Motion No. M-61999


Synopsis


Service of the claim by ordinary mail deprives the court of jurisdiction.

Case Information

UID:
2000-015-081
Claimant(s):
VERNELL SMILEY
Claimant short name:
SMILEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102311
Motion number(s):
M-61999
Cross-motion number(s):

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

Signature date:
September 19, 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. This is a claim by an inmate alleging that negligence on the part of employees of the Department of Correctional Services prevented his release from custody upon his conditional release date of March 16, 2000. The claim and notice of intention to file a claim were served upon the Attorney General by ordinary mail and received by him on April 18, 2000. The first affirmative defense in the answer alleges that the Court lacks jurisdiction because the claim was not served either personally or by certified mail, return receipt requested. That affirmative defense is the basis of this dismissal motion.

The Court of Claims does not acquire jurisdiction to adjudicate a claim unless the claimant timely serves and files a claim in compliance with sections 10 and 11 of the Court of Claims Act (Selkirk v State of New York, 249 AD2d 818). Here, defendant argues that the Court lacks personal jurisdiction because the claim was served upon the Attorney General by regular mail rather than by certified mail, return receipt requested. That defense is pleaded with the requisite specificity in the answer (Villa v State of New York, 228 AD2d 930). Service upon the Attorney General by ordinary mail requires the dismissal of the claim for lack of jurisdiction (Philippe v State of New York, 248 AD2d 827).


September 19, 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 July 7, 2000;
  2. Affirmation of Joel L. Marmelstein dated July 7, 2000, with exhibits;
  3. Verified answer filed on May 5, 2000.