New York State Court of Claims

New York State Court of Claims

ROGERS v. THE STATE OF NEW YORK, #2000-028-101514, Claim No. 98794, Motion No. M-62242


Synopsis


Defendant's motion to dismiss the claim for improper service is granted. Photocopy of the claim's envelope is provided in support of the motion.

Case Information

UID:
2000-028-101514
Claimant(s):
JAMES ROGERS
Claimant short name:
ROGERS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98794
Motion number(s):
M-62242
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
JAMES ROGERS, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Kathleen M. Resnick Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 16, 2000
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on defendant's motion for an order of dismissal:

• abNotice of Motion and Supporting Affirmation of Kathleen M. Resnick, Esq., AAG, filed August 22, 2000, with annexed Exhibits A - C ("Resnick affirmation")

This is a bailment claim arising from loss of personal property that is alleged to have occurred in March 1998. A notice of intention to file a claim was received by the Department of Law on June 4, 1998 (Resnick affirmation, Exh A), and the claim was subsequently served on September 29, 1998 (id, Exh B). In its answer, defendant raised, as its first affirmative defense, the following:

This Court lacks personal jurisdiction over the defendant, The State of New York, and subject matter jurisdiction of the claim, as the claim was not served in

compliance with Section 11(a) of the Court of Claims Act in that the claim was

delivered by ordinary mail instead of served personally or by certified mail, return

receipt requested.


This language sets forth the affirmative defense of improper service with sufficient particularity to satisfy the requirement of section 11(c) of the Court of Claims Act, as it provides "adequate and clear notice to any reasonable person that a defect is claimed to exist and that it may at some point be used as the basis of a motion to dismiss" (Sinacore v State of New York, 176 Misc 2d 1, 6; see also Fowles v State of New York, 152 Misc 2d 837).

In support of the motion, defendant has submitted a photocopy of the envelope in which the claim was received (Resnick affirmation, Exh B), showing only regular mail postage.[1] A claimant's failure to serve the Attorney General personally or by certified mail, return receipt requested, is a fatal jurisdictional defect and deprives this Court of the power to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721, 724; Bogel v State of New York, 175 AD2d 493). Perhaps in apparent recognition of this fact, claimant has made no submission in opposition to this motion.

Defendant's motion is granted, and the claim is dismissed.




October 16, 2000
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] A photocopy of the envelope in which the notice of intention was received (Resnick affirmation, Exh A) establishes that that document was served by certified mail, return receipt requested.