Defendant's motion to dismiss the instant claim on the ground that the Court
lacks jurisdiction, made at the trial of the matter held on October 17, 2000,
This claim seeks to recover $5,038.50 in compensatory damages for destruction
of the claimant's personal property while he was housed in a special housing
unit at Marcy Correctional Facility during April of 1997. Claimant alleges that
his property, an Electro brand AM/FM radio and cassette player which cost
$27.98, and digital headphones costing $14.99, were undamaged when inventoried
prior to his being housed in the special housing unit (SHU) and that upon their
return to him the handle was broken, the battery housing cover was cracked and
there was internal damage which effected the use of the headphones.
The defendant's answer to the claim contained as its second affirmative defense
an allegation that the instant claim was not properly served upon the Attorney
General by personal service or by Certified Mail, Return Receipt Requested. At
trial defendant moved to dismiss the claim on the grounds that claimant's
failure to serve the claim in the manner prescribed by section 11(a) of the
Court of Claims Act deprived the Court of jurisdiction. Claimant opposed the
motion by offering copies of mail receipts which he alleged demonstrated
certified mail service.
An examination of Exhibits M and N reveal, however, that these are separate
parts of the same mailing. Exhibit M is the claimant's receipt for article
number P 054 771 928 and Exhibit N is the return receipt for article number P
054 771 928. The return receipt (Exhibit N) bears a date stamp of June 26, 1997
from the Attorney General's office. Claimant's notice of intention to file a
claim arising out of the loss of his personal property was sworn to on June 18,
1997 as was claimant's affidavit of service of the notice of intention to file a
claim. His claim, however, was verified on the 17
th day of November 1997 and, therefore, Exhibits M and N cannot be found to
refer to the certified mailing of the claim. Claimant offered no additional
evidence related to the manner of service of the claim.
It is well established that "[t]he notice of claim requirements in the Court of
Claims Act § § 10 and 11 are jurisdictional prerequisites to the
maintenance of a claim and must be strictly construed" (
Phillips v State of New York
, 237 AD2d 590, 591; Cannon v State of New
, 163 Misc 2d 623). Service of the claim upon the Attorney General by
regular mail rather than personally or by certified mail, return receipt
requested, deprives the court of jurisdiction over the State and requires the
granting of the dismissal motion (see
, Philippe v State of New
, 248 AD2d 827).
Since the claimant failed at trial to submit proof that the claim was served
upon the Attorney General either personally or by certified mail, return receipt
requested as required by section 11 (a) of the Court of Claims Act this Court
lacks jurisdiction to proceed and the claim is, therefore, dismissed.
Let judgment be entered accordingly.