New York State Court of Claims

New York State Court of Claims

POLLACK v. THE STATE OF NEW YORK, #2001-016-034, Claim No. 102947, Motion Nos. M-62804, M-62805, CM-62948


Synopsis


Claim served by Federal Express was dismissed.

Case Information

UID:
2001-016-034
Claimant(s):
MARVIN ARNOLD POLLACK
Claimant short name:
POLLACK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102947
Motion number(s):
M-62804, M-62805
Cross-motion number(s):
CM-62948
Judge:
Alan C. Marin
Claimant's attorney:
Marvin Arnold Pollack
Defendant's attorney:
Eliot Spitzer, Attorney GeneralSusan J. Pogoda, AAG
Third-party defendant's attorney:

Signature date:
May 9, 2001
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The claim of Marvin Arnold Pollack alleges that "the State [was negligent] for allowing [an] inmate . . . to assault" him at Kirby Forensic Psychiatric Center on June 20, 1999. Motion no. M-62804 is claimant's motion for partial summary judgment and motion no. M-62805 is his motion to proceed as a poor person and to have counsel assigned. Cross-motion no. CM-62948 is defendant's cross-motion to dismiss. Claimant served defendant by certified mail, return receipt requested with a notice of intention to file a claim on August 2, 1999. See ¶3 of the January 10, 2001 affirmation of Susan J. Pogoda (the "Pogoda Aff.") and Exhibit A thereto as well as Exhibit 8 to the July 10, 2000 affidavit of Marvin Arnold Pollack.

Pollack filed claim no. 102947 on August 21, 2000 and served it on defendant by Federal Express.[1] See ¶4 of the Pogoda Aff. and Exhibit B thereto. Claimant concedes that he served the claim by Federal Express. See page sixty-seven of claimant's February 20, 2001 reply affidavit.

On December 29, 2000, claimant filed an "Amended Verified Claim and Complaint," which was served on defendant by "Priority mail certified return receipt requested." See ¶9 of the Pogoda Aff.
* * *
Section 11(a)(1) of the Court of Claims Act provides that a claim must be served on defendant either personally or by certified mail, return receipt requested. Alternate methods such as Federal Express or express mail are not permissible. See, e.g., Negron v State of New York, 257 AD2d 652, 684 NYS2d 566, 567 (2d Dept 1999) (service by Federal Express was "admittedly improper, as it was not by certified mail, return receipt requested, as required . . ."). See also Martinez v State of New York, 722 NYS2d 907 (2d Dept 2001) in which the dismissal of a claim served by express mail was upheld as that "is not one of the authorized methods of service under" the Act.

"It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and accordingly, must be strictly construed . . ." Byrne v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted).

Because Pollack served his claim by Federal Express, "no jurisdiction was acquired, and the claim [is] properly dismissed . . ." Martinez, supra. The fact that Pollack later served an amended claim by certified mail, return receipt requested is inapposite, since the Court never acquired jurisdiction over his original claim.[2]

Claimant's properly-served notice of intention appears timely pursuant to §10.3 of the Court of Claims Act (the Act") which provides that such a notice of intention must be served within 90 days of accrual of a claim. Pursuant to such section, he thus now has two years from accrual of the claim – in this case, to June 20, 2001 – to file his claim and serve it, either by certified mail, return receipt requested, or by personal service as provided in the statute. Pollack's notice of intention dealt only with the alleged June 20, 1999 assault on him and not the many additional matters raised in his amended claim. The two-year time period afforded by the service of his notice of intention would thus relate only to such assault.

Accordingly, having reviewed the parties' submissions,[3] IT IS ORDERED that cross-motion no. CM-62948 is granted and claim no. 102947 is dismissed. Motions no. M-62804 and M-62805 are denied as moot.


May 9, 2001
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]It is unclear whether the claim was served on defendant on August 21, 2000, as indicated on the FedEx bar code label or on August 25, 2000, as indicated on a "received" stamp on the claim. In any event, such date is not at issue here.
  2. [2]It is undisputed that Pollack's amended claim was not served either within forty days of service of his original claim or before defendant answered, pursuant to §206.7(b) of Uniform Rules for the Court of Claims. There is, however, a dispute as to whether defendant agreed to extend claimant's time to file and serve such an amended claim. In any event, no stipulation was filed pursuant to §206.7(c) of the Uniform Rules. Moreover, the issue need not be reached since the original claim was a nullity which could not in any case be amended.
  3. [3]Along with the pleadings, the following documents that relate to these motions and cross-motion were reviewed: claimant's notice of motion on motion no. M-62804 with affidavit in support, untitled descriptive document and Exhibits 1-8; claimant's "Petition" on motion no. M-62805 with Exhibits A-C, 2-3, A, 1-6, and 1-2; claimant's September 28, 2000 "Affidavit in Support of Notice of Motion for Partial Summary Judgment on Claim; claimant's letter dated October 24, 2000 with accompanying submission; claimant's submission entitled "Exhibits," dated October 24, 2000; defendant's notice of cross-motion with affirmation in support and Exhibits A-E; claimant's February 20, 2001 reply affidavit; defendant's March 7, 2001 reply affirmation with Exhibit A; claimant's March 20, 2001 "Affidavit in Response to Defendant's Reply Affirm, and in Further Support of Claimant's Request for Partial Summary Judgement as to Liability Only" with Exhibits 1-10; defendant's March 26, 2001 letter with undesignated Exhibit; and claimant's March 31, 2001 letter.