New York State Court of Claims

New York State Court of Claims

WHITNEY v. THE STATE OF NEW YORK, #2001-015-195, Claim No. 98927, Motion No. M-63829


Synopsis


State's motion to dismiss claim for lack of jurisdiction attributable to service of claim by regular mail is granted.

Case Information

UID:
2001-015-195
Claimant(s):
FREEMAN WHITNEY
Claimant short name:
WHITNEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98927
Motion number(s):
M-63829
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Freeman Whitney, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Carol A. Cocchiola, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 16, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant's motion to dismiss the instant claim pursuant to CPLR 3211 for lack of jurisdiction is granted. The claim seeks to recover the sum of $346.60 as the reasonable value of personal property allegedly lost during the inmate claimant's transfer from Oneida Correctional Facility to Elmira Correctional Facility on or about August 28, 1997. The claim was served upon the Attorney General by ordinary mail and received by him on September 10, 1998. The fourth affirmative defense in the answer alleges that the Court lacks jurisdiction because the claim was not served either personally or by certified mail, return receipt requested. That affirmative defense is the basis of this dismissal motion.

The Court of Claims does not acquire jurisdiction to adjudicate a claim unless the claimant timely serves and files a claim in compliance with sections 10 and 11 of the Court of Claims Act (Selkirk v State of New York, 249 AD2d 818). Here, defendant argues that the Court lacks jurisdiction because the claim was served upon the Attorney General by regular mail rather than by certified mail, return receipt requested. That defense is pleaded with the requisite specificity in the answer (Villa v State of New York, 228 AD2d 930). Service upon the Attorney General by ordinary mail requires the dismissal of the claim for lack of jurisdiction (Philippe v State of New York, 248 AD2d 827).


October 16, 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 23, 2001;
  2. Affirmation of Carol A. Cocchiola dated July 23, 2001 with exhibit;
  3. Verified answer filed on October 16, 1998.