New York State Court of Claims

New York State Court of Claims

LEE v. THE STATE OF NEW YORK DEPARTMENT OF CORRECTIONAL SERVICES FOR THE INTENDED TORTING BY CORRECT (sic) OFFICER MACKAY HERE AT AUBURN CORRECTIONAL FACILITY AT AUBURN, NEW YORK 13021, #2001-005-545, Claim No. 103277, Motion No. M-64357


Synopsis


Defendant's motion for dismissal of the claim for improper service is granted.

Case Information

UID:
2001-005-545
Claimant(s):
EDDIE JAMES LEE, SR. 94-B-0823-A-5-45
Claimant short name:
LEE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK DEPARTMENT OF CORRECTIONAL SERVICES FOR THE INTENDED TORTING BY CORRECT (sic) OFFICER MACKAY HERE AT AUBURN CORRECTIONAL FACILITY AT AUBURN, NEW YORK 13021
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103277
Motion number(s):
M-64357
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Eddie James Lee, Sr.,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Heather R. Rubinstein, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 20, 2001
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On December 12, 2001, the following papers, numbered 1 to 6, were read on motion by Defendant for dismissal of the claim:

1, 2 Notice of Motion, Affirmation and Exhibits Annexed

3, 4 Opposing Papers and Memorandum of Law

5, 6 Filed Papers: Claim, Answer

Upon the foregoing papers, this motion is granted.

The Defendant moves to dismiss the claim herein on the grounds, inter alia, that it was not served personally or by certified mail, return receipt requested, as required by Court of Claims Act §11(a). The Defendant preserved such defense with particularity in its verified answer as the Sixth Affirmative Defense (see Court of Claims Act §11[c]).

Defendant alleges without dispute that the claim was served by regular mail, depriving the court of jurisdiction. Claimant's opposing papers totally ignore the jurisdictional and service infirmities asserted in the motion.

A claim served by regular mail contravenes the strict service requirements of the statute (§11[a]) and, having been properly preserved, deprives the court of jurisdiction. The motion is granted and the claim is dismissed (see Hodge v State of New York, 158 Misc 2d 438, affd, 213 AD2d 766, app dismissed 87 NY2d 968).


December 20, 2001
Rochester, New York

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