New York State Court of Claims

New York State Court of Claims

FERNNANDEZ v. New York, #2000-015-502, Claim No. 95651, Motion No. M-61250


Synopsis


Absence of a request for a return receipt is a jurisdictional defect.

Case Information

UID:
2000-015-502
Claimant(s):
JULIO FERNANDEZ
Claimant short name:
FERNNANDEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
95651
Motion number(s):
M-61250
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Julio Fernandez, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Timothy P. Mulvey, Esquire,Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 29, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This is a claim by an inmate appearing pro se to recover for personal injuries allegedly sustained when he was battered by correction officers on November 14, 1996 at Oneida Correctional Facility. The second and third affirmative defenses set forth in the answer allege that the Court lacks jurisdiction in that the notice of intention to file a claim and the claim were served upon the Attorney General by certified mail, but without return receipts requested. The second and third affirmative defenses meet the specificity requirement of Court of Claims Act § 11(c) (
Villa v State of New York, 228 AD2d 930). The trial of this claim was scheduled for March 15, 2000 at Marcy Correctional Facility and defense counsel moved to dismiss in a written motion, returnable at Marcy Correctional Facility on the trial date, based upon the second and third affirmative defenses. Defense counsel orally moved to dismiss at the opening of the trial and decision was reserved. The dismissal motion will now be addressed.
Court of Claims Act § 11(a) requires that a notice of intention and a claim be served upon the Attorney General either personally or by certified mail, return receipt requested. The failure to comply with the service requirements of Court of Claims Act § 11 (a) deprives this Court of jurisdiction over the State (
Philippe v State of New York, 248 AD2d 827). The "requirement that a return receipt be requested is jurisdictional in nature in and of itself" (Schaeffer v State of New York, 145 Misc 2d 135, 139). Here, the exhibits annexed to the affirmation of Assistant Attorney General Timothy P. Mulvey dated February 16, 2000 offered in support of the dismissal motion convince the Court that both the notice of intention and claim were served upon the Attorney General by certified mail, without return receipts requested. Therefore, the dismissal motion must be granted.
The Clerk is directed to enter a judgment in accord with this decision.


March 29, 2000
Saratoga Springs, New York

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