New York State Court of Claims

New York State Court of Claims

JEFFERS v. THE STATE OF NEW YORK, #200-018-024, Claim No. 94773 and 96065, Motion No. M-61453 and M-61452


Synopsis


Defendant brought two motions to dismiss Claim Nos. 96065 and 94773 for lack of jurisdiction. Claimant served both claims by regular mail. Both motions granted, the claims were dismissed.

Case Information

UID:
200-018-024
Claimant(s):
JEFFREY JEFFERS
Claimant short name:
JEFFERS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
94773 and 96065
Motion number(s):
M-61453 and M-61452
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
JEFFREY JEFFERS, PRO SE
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Carla T. Rutigliano, Esquire Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 7, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant brings two motions to dismiss claim numbers 96065 and 94773 for lack of


jurisdiction. The Court has considered the following documents in determining the motions:

Claim Number 94773, Motion Number M-61453

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


Affirmation of Carla T. Rutigliano, Esquire, Assistant Attorney

General in Support with the exhibit attached thereto..................................2

Filed Documents:


Claim...........................................................................................................3


Verified Answer...........................................................................................4

Claim Number 96065, Motion Number M-61452

Notice of Motion..........................................................................................5


Affirmation of Carla T. Rutigliano, Esquire, Assistant Attorney

General in Support with the exhibit attached thereto...................................6

Letter from Claimant dated March 30, 2000 in response to

both motions..................................................................................................7


Filed Documents:


Claim..............................................................................................................8


Verified Answer.............................................................................................9

Defendant brings these motions alleging that claim numbers 94773 and 96065 should be dismissed for lack of subject matter and personal jurisdiction for failure to serve the claims in accordance with Court of Claims Act §11. Defendant asserts that claimant served the claims by regular mail rather than certified mail return receipt requested. Defendant has attached as exhibits to both motions, copies of the envelopes indicating the claims were sent by regular mail.[1] Claimant, by his letter response to the motions, acknowledges that he served the claims by regular mail.

The Court of Claims Act §11 (a) states in relevant part that "the claim shall be filed with the clerk of the court... [and] a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general."

Here the claimant served the claims upon the Attorney General by regular mail. The failure to properly serve the Attorney General gives rise to a defect in jurisdiction which if not raised with particularity, is subject to the waiver provisions of the Court of Claims Act § 11(c).

Defendant in the answers to both claims raised with sufficient particularity the affirmative defense of improper service. As a result, claimant's assertion in his letter response that defendant should not be allowed to "bring up this issue" now, almost four years after the claims were filed, must fail. Claimant was put on notice within 40 days of service of each claim that the claims were not properly served. (Claim number 94773, answer, page 4, seventh affirmative defense; claim number 96065, answer, page 3, fifth affirmative defense.)

In Bogel v State of New York, 175 AD2d 493, the claimant was an inmate at a state correctional facility who filed four claims against the State seeking damages for personal injuries and loss of property. All four claims were served upon the Attorney General by regular mail. There the State moved to dismiss, the Court of Claims granted the motion, and the appellate court affirmed holding that "[s]ervice of the claims upon the Attorney-General by ordinary mail was insufficient to acquire jurisdiction over the State" and the claims were therefore properly dismissed. (Bogel v State of New York, supra at 494.)

In Diaz v State of New York, 174 Misc 2d 63, the claimant filed and served a claim against the State; however, the claim was not served upon the Attorney General in the manner prescribed by the Court of Claims Act §11. The court held that "[s]ervice by regular mail does not comply with the requirements of the statute and such service is therefore not adequate to acquire jurisdiction over the State." Furthermore, "the court does not have discretion to disregard the defect." (Diaz v State of New York, supra at 64.)

Here, it has been established that claimant served these claims upon the Attorney General by regular mail, which is not a method of service in compliance with the Court of Claims Act §11. Thus the Court lacks jurisdiction over the defendant.

Based upon the foregoing, the defendant's motions are GRANTED and claim numbers 94773 and 96065 are hereby DISMISSED.



July 7, 2000
Syracuse, New York

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




[1]
The Court notes that the envelope for claim number 94773(motion number M-61453, Exhibit A) reflects a postmark of August 18, 1996, although the claim was allegedly not signed until September 15, 1996; the same date the affidavit of service indicates the claim was mailed allegedly by certified mail. The date stamp on the same envelope indicates that the Department of Law received the claim on September 25, 1996.
Given claimant's acknowledgment that the claim was served by regular mail, the confusion resulting from the envelope post mark is not determinative.