New York State Court of Claims

New York State Court of Claims

GONZALEZ v. THE STATE OF NEW YORK, #2000-028-101523, Claim No. 99371, Motion No. M-62273


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:
2000-028-101523
Claimant(s):
FERMIN GONZALEZ
Claimant short name:
GONZALEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99371
Motion number(s):
M-62273
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
FERMIN GONZALEZ, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Kevan J. Acton, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 4, 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.

Notice of Motion and Supporting Affirmation of Kevan J. Acton, Esq., AAG, filed August 24, 2000, with annexed Exhibits A - B ("Acton affirmation")


Affirmation in Opposition (none received)


Filed papers:

Claim, filed November 27, 1998

Answer, filed January 4, 1999

This claim is based on allegations that claimant, an inmate at Greene Correctional Facility, was not provided with adequate medical attention when he was injured on September 5, 1998. The claim was received by the Department of Law on November 27, 1998 (Acton affirmation, Exh A). In its answer, defendant raised, as its second affirmative defense, the following:

The claim lacks subject matter and personal jurisdiction of the defendant and the claim since the claimant failed to serve the claim by certified mail, return receipt requested, on the defendant as required by section 11 of the Court of Claims Act.

Although somewhat awkward, 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 instant motion, defendant has submitted a photocopy of the envelope in which the claim was received (Acton affirmation, Exh B), showing only regular mail postage. 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). 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.


December 4, 2000
Albany, New York

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