New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2000-019-524, Claim No. 102211, Motion No. M-61675


Synopsis


State moves to dismiss pursuant to CPLR 3211 on the grounds that this Court lacks jurisdiction. Granted, Claim Dismissed.

Case Information

UID:
2000-019-524
Claimant(s):
CARLOS RODRIGUEZ
Claimant short name:
RODRIGUEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102211
Motion number(s):
M-61675
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
CARLOS RODRIGUEZ, #93-A-6379, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Eileen E. Bryant, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
June 22, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In lieu of submitting an Answer, the State of New York (hereinafter "State") moves to dismiss pursuant to CPLR 3211 on the grounds that this Court lacks jurisdiction.


The Court has considered the following papers in connection with this motion:
  1. Claim, filed March 31, 2000.
  2. Notice of Motion No. M-61675, dated May 8, 2000 and filed May 9, 2000.
  3. Affirmation of Eileen E. Bryant, AAG, in support of motion, dated May 8, 2000, with attached exhibits.
This bailment claim accrued on March 17, 1999 when Claimant discovered some of his personal property was missing after being released from the special housing unit in Shawangunk Correctional Facility. The attorney general was served with a Notice of Intention by certified mail, return receipt requested, on June 7, 1999. Thus, the Notice of Intention was timely and properly served. However, pursuant to Court of Claims Act (hereinafter "CCA") 10 (3), any claim with respect to that Notice of Intention was required to be filed with the Clerk of the Court and served upon the attorney general by one of the prescribed methods, namely personal service or certified mail, return receipt requested, within two years after the accrual of such claim. (CCA 10 [3] & 11). Here, the State submits a copy of the envelope in which said Claim was received which clearly denotes that it was sent by regular mail. In addition, Claimant's affidavit of service is inadequate inasmuch as it fails to describe the method of service employed. (CPLR 306). It is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in CCA 10 and 11 are jurisdictional in nature and must be strictly construed. (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). Moreover, it is Claimant's burden to establish proper and timely service. (Boudreau v Ivanov, 154 AD2d 638, 639). Claimant has failed to come forward with any proof establishing proper service of this Claim upon the attorney general.[1] Consequently, this Claim must be dismissed.


However, Claimant is not without a remedy. In view of the fact that Claimant timely and properly served a Notice of Intention he need only prepare a new Claim and properly file and serve that new Claim in accordance with CCA 10 and 11 before the expiration of the two-year period.


Accordingly, for the reasons stated above, it is ordered that the State's motion to dismiss, Motion No. M-61675, is GRANTED and Claim No. 102211 is DISMISSED.


June 22, 2000
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims



[1]
On June 9, 2000, two weeks after the return date, Claimant submitted an "Application of Doctrine" to the Clerk of the Court. The Court has not considered this document in opposition to this motion because it was untimely. Moreover, to the extent said document may be viewed as seeking affirmative relief, it is rejected for failure to comply with CPLR 2215.