New York State Court of Claims

New York State Court of Claims

JONES v. THE STATE OF NEW YORK, #2001-013-005, Claim No. 98789, Motion No. M-63386


Synopsis


Defendant's motion to dismiss the claim is granted because it was served by regular mail (Court of Claims Act §11[s]). Language used in the answer was sufficiently particular to preserve the defense of improper service (Court of Claims Act §11[c]).

Case Information

UID:
2001-013-005
Claimant(s):
HILARY JONES
Claimant short name:
JONES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98789
Motion number(s):
M-63386
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
HILARY JONES, Pro Se
Defendant's attorney:
HON. ELIOT SPITER
Attorney General of the State of New York
BY: PAUL VOLCY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 24, 2001
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


The following papers were read on Defendant's motion to dismiss on the grounds that the claim was improperly served:
1. Notice of Motion and Supporting Affidavit, with Annexed Exhibits

2. Affidavit in Opposition (None Received)

3. Filed papers: Claim, Answer


This claim seeks compensation for physical injuries suffered by Claimant when, it is alleged, he was assaulted by correction officers at Gowanda Correctional Facility on August 3, 1998. The claim was filed with the Court on August 10th of that year, and from Defendant's submissions, it appears that it was served on the Attorney General on August 11th.

In its answer, Defendant State of New York set forth the following as its fifth affirmative defense:

Upon information and belief, this Court lacks jurisdiction because of Claimant's failure to properly serve a Claim and commence an action as required by Sections 9, 10 and 11 of the Court of Claims Act. Claimant failed to properly serve a Notice of Intention to File Claim or a Claim within ninety (90) days of the alleged incident of August 3, 1998. The Notice of Claim was served on August 11, 1998. Court of Claims Act, Section 11, requires that service on the State of New York be made personally on the Attorney General or by Certified Mail, Return Receipt Requested, to the Attorney General. Claimant served the Claim by Regular Mail.


This language sets forth the affirmative defense of improper service[1] 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) and refers both to the relevant statute and to the requirement that should have been met (see, Smith v State of New York, Ct Cl, July 20, 1993 [Claim No. 85799, Motion No. M-48029], Benza, J.; Kanaval v State of New York, Ct Cl, July 20, 1993 [Claim No. 86053, Motion No. M-47990], Benza, J.).

In support of the instant motion to dismiss the claim on the ground of improper service, Defendant has submitted a photocopy of the envelope in which the claim was received (Notice of Motion, Exhibit A), establishing that it was sent by regular mail. Claimant has made no submission in opposition to the motion.

Failure to comply with the time and manner of service requirements contained in Sections 10 and 11 of the Court of Claims Act 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). Consequently, Defendant's motion is granted, and Claim No. 98789 is dismissed.


May 24, 2001
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims




  1. [1]This statement can also be read to set forth the defense of untimeliness, but it is not necessary to address that issue, or to determine whether that defense is set forth with sufficient particularity.