New York State Court of Claims

New York State Court of Claims

VASQUEZ v. THE STATE OF NEW YORK, #2001-015-193, Claim No. 104463, Motion No. M-63865


Synopsis


State's motion to dismiss claim served by regular mail is dismissed for lack of jurisdiction.

Case Information

UID:
2001-015-193
Claimant(s):
JOHN VASQUEZ
Claimant short name:
VASQUEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104463
Motion number(s):
M-63865
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
John Vasquez
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Eileen E. Bryant, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 17, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant's unopposed pre-answer motion to dismiss the claim for lack of jurisdiction due to the claimant's failure to serve the claim in accordance with section 11 (a) of the Court of Claims Act is granted. This claim seeks to recover the sum of $99.99, the alleged value of a radio and a pair of Nike Cortez sneakers which claimant alleges were missing when he received his personal property at the Oneida Correctional Facility on March 24, 2001. The claim alleges that claimant pursued his administrative remedies and that his request for relief was denied.

Section 11 (a) of the Court of Claims Act requires that, except in appropriation cases, the claim "shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." It is well established that service of a claim by regular mail will not satisfy the service requirement of section 11(a) and will result in dismissal of the claim for claimant's failure to acquire jurisdiction over the State (Philippe v State of New York, 248 AD2d 827; Bogel v State of New York, 175 AD2d 493).

On this motion the unrefuted allegation of the Attorney General that the instant claim was served by regular mail, supported by an attached copy of an envelope bearing a June 25, 2001 postage meter stamp for $.55 postage and containing the claimant's return address, is deemed sufficient proof of service by regular mail to merit dismissal of the claim. The motion is, therefore, granted and the instant claim is dismissed.


October 17, 2001
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated July 31, 2001;
  2. Affirmation of Eileen E. Bryant dated July 27, 2001, with exhibits.