New York State Court of Claims

New York State Court of Claims

ANDERSON v. STATE OF NEW YORK, #2000-018-010, Claim No. 101599, Motion No. M-61036


Synopsis


Defendant was successful in pre-answer motion to dismiss a claim served by ordinary mail and

not in accordance with Court of Claims Act §11(a).

Case Information

UID:
2000-018-010
Claimant(s):
KURT ANDERSON The Court has sua sponte amended the caption of the action to reflect the only proper defendant.
Claimant short name:
ANDERSON
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The Court has sua sponte amended the caption of the action to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101599
Motion number(s):
M-61036
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
KURT ANDERSON, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 1, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The Court has considered the following documents on this pre-answer motion to dismiss


the claim:


Notice of Motion...............................................................................................1


Affirmation of Joel L. Marmelstein, Esquire

Assistant Attorney General, with all exhibits attached thereto.........................2

No response has been received by the claimant. Defendant brings this pre-answer motion to dismiss pursuant to CPLR 3211(8), arguing that this Court does not have jurisdiction over the defendant because the State was not properly served in accordance with Court of Claims Act §11(a).

Section 11(a) of the Court of Claims Act requires that a copy of the claim be served upon the attorney general within the time frames set forth in Court of Claims Act §10 personally or by certified mail return receipt requested. Service of a claim by a method not authorized by §11(a) does not confer personal jurisdiction over the State and no action is commenced. (See, Hodge v State of New York, 213 AD2d 766; Charbonneau v State of New York, 178 AD2d 815, aff'd on appeal, 81 NY2d 721; Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607).

Defendant submits that the claim was served by regular mail. As evidence, defendant has attached a copy of the envelope in which the claim was mailed. (See Exhibit B.) Service by regular mail upon the attorney general is not proper service. (Charbonneau v State of New York, supra at 816.) As a result, this Court does not have personal jurisdiction over the defendant, and it is without the authority to ignore the defect. (Byrne v State of New York, supra at 783.)

Accordingly, based upon the foregoing, the motion is GRANTED and the claim is hereby DISMISSED.


May 1, 2000
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims