New York State Court of Claims

New York State Court of Claims

D'ANGELO v. THE STATE OF NEW YORK, #2001-005-543, Claim No. 104864, Motion No. M-64139


Synopsis


Defendant's motion for an order dismissing the claim herein for improper service is granted.

Case Information

UID:
2001-005-543
Claimant(s):
PHILIP D'ANGELO 00A5404
Claimant short name:
D'ANGELO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104864
Motion number(s):
M-64139
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Philip D'Angelo,
Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney General
By: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 19, 2001
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


On November 14, 2001, the following papers, numbered 1 to 5, were read on motion by Defendant for dismissal of the claim herein:

1, 2, 3 Notice of Motion, Affirmation, Corrected Affirmation and Exhibit Annexed
  1. Correspondence dated October 10, 2001
  2. Filed Papers: Claim
Upon the foregoing papers, this motion is granted.

In lieu of an answer, Defendant seeks to dismiss this claim for the failure to have served the claim properly in accordance with the statutory requirements of Court of Claims Act §11.

The claim herein was allegedly served upon the Defendant on September 7, 2001, alleging that certain items of personal property, including food, were missing, damaged or spoiled, upon an undated transfer from Cayuga Correctional Facility, ultimately to Attica Correctional Facility.

Dismissal is sought on the ground that service of the claim was accomplished by regular mail (see Exhibit A to Defendant's Corrected Affirmation), in contravention of the requirements of §11(a)(i). By letter/notice (sic) dated October 10, 2001, Claimant wrote to the Defendant, discussing a "motion pursuant to CPLR 7503(a)" purporting to compel arbitration, and advising that he had forwarded material related to the instant claim to the federal District Court for the Southern District. Other than that correspondence, which does not address the instant motion (and I note that the motion was served upon Claimant by mail on October 2, 2001), Claimant does not dispute or comment upon the alleged improper service of the claim by regular mail.

Section 11(a) of the Court of Claims Act sets forth strict jurisdictional requirements for service of claims against the Defendant, and Claimant has clearly failed to properly serve his claim. Defendant correctly notes that service by ordinary mail is insufficient to obtain jurisdiction over the State of New York, as "mailings which do not equate to certified mail, return receipt requested, are inadequate and do not comply with Court of Claims Act §11(a) (see, Charbonneau v State of New York, 178 AD2d 815, 816, affd 81 NY2d 721; Bogel v State of New York, 175 AD2d 493, 494; Baggett v State of New York, 124 AD2d 969; Byrne v State of New York, 104 AD2d 782, 784, lv denied 64 NY2d 607; Schaeffer v State of New York, 145 Misc 2d 135)" Hodge v State of New York, 213 AD 2d 766, 767.

The motion is granted and the claim is dismissed.


November 19, 2001
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims