New York State Court of Claims

New York State Court of Claims

ESPOSITO v. STATE OF NEW YORK, #2001-006-965, Claim No. 103311, Motion Nos. M-63148, CM-63190


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Defendant's attorney:
By: James L. Gelormini, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 21, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimant's motion for an order of this court dismissing various affirmative defenses of defendant's answer pursuant to CPLR Rule 3211(b), and defendant's cross-motion dismissing the claim pursuant to CPLR Rule 3211(a)(8) on the ground that the court does not have jurisdiction of the claim. In deciding this motion the court has read and reviewed the following papers:
  1. Notice of motion dated February 24, 2001 and filed February 28, 2001.
  1. Claimant's affidavit sworn to February 24, 2001 in support of the motion.
  1. Notice of cross-motion dated March 8, 2001 and filed March 12, 2001.
  1. Affirmation of James L. Gelormini, Esq., Assistant Attorney General, dated March 8, 2001, along with Exhibit A attached thereto, in support of the cross- motion.
  1. Claim dated October 23, 2000 and filed October 30, 2000.
    1. Answer verified November 9, 2000 and filed November 13, 2000..
This claim arose on August 13, 2000 while claimant was an inmate at Attica Correctional Facility. Claimant alleges he was playing handball in the D-block yard on August 13, 2000, and fell during the course of the game, thereby injuring his left hand and thumb. Subsequently, claimant was taken to the correctional facility hospital that same day, and was seen by a nurse. According to claimant, the nurse placed iodine on claimant's hand cuts, and advised claimant his left thumb appeared sprained. Claimant further states the nurse advised him to leave the thumb "alone" and observe how it responded in the ensuing two weeks. Claimant was also given pain and anti-inflammatory medication. Claimant alleges he continued to feel pain in his thumb over the following two week period . Claimant once again went to the correctional facility hospital, and on this occasion X-rays were taken of the injured thumb. These X-rays showed that claimant's left thumb was fractured. A cast was then applied to claimant's left hand. Claimant maintains the medical staff at Attica Correctional Facility committed medical malpractice in failing to properly diagnose his left thumb injury on August 13, 2000. According to claimant, this caused him to suffer unnecessary pain and suffering for the two week period his fracture was undiagnosed.

By this motion to dismiss, the defendant alleges that the claim was served upon the Attorney General by regular mail, and therefore, the court lacks jurisdiction of the claim. The third affirmative defense of the defendant's answer sets forth this jurisdictional objection with particularity. Therefore, defendant is in compliance with Section 11(c) of the Court of Claims Act and has not waived this jurisdictional objection.

In support of its allegation that the claim was served by regular mail, defendant has attached to its motion papers, as Exhibit A, a copy of the envelope in which the claim was received by the Attorney General. This envelope shows a postmark of October 25, 2000, with postage of 55 cents. This postage would indicate mailing by regular mail. The envelope bears no indicia of mailing by certified mail, return receipt requested. Based upon the foregoing, the court finds that the claimant served the Attorney General with the claim by regular mail.

Section 11(a) of the Court of Claims Act requires the claim to be served upon the Attorney General either personally or by certified mail, return receipt requested. A claim which is not served in this manner is subject to dismissal because of the absence of personal jurisdiction over the defendant. Turley v State of New York, __ AD2d __, 719 NYS2d 380; Adkison v State of New York, 226 AD2d 409; Bogel v State of New York, 175 AD2d 493; Baggett v State of New York, 124 AD2d 969.

Accordingly, it is

ORDERED, that the cross-motion of the defendant is hereby granted and the claim is dismissed, and it is further

ORDERED, that claimant's motion is denied as moot.

March 21, 2001
Buffalo, New York

Judge of the Court of Claims