New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2001-019-504, Claim No. 102833, Motion Nos. M-62694, CM-62780


State's cross-motion for dismissal due to improper service granted; Claimant's motion to strike affirmative defenses denied as moot.

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: Eileen E. Bryant, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
January 17, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for an order "to strike Defendants Verified Answer". The defendant State of New York (hereinafter "State") opposes said motion and cross-moves for an order of dismissal pursuant to CPLR 3211.

The Court has considered the following papers in connection with this motion:

  1. DECISION AND ORDER, Lebous, J., Claim No. 102211, Motion No. M-61675, filed June 28, 2000.
  1. Claim No. 102833, filed July 31, 2000.
  2. Verified Answer, filed September 13, 2000.
  3. Unverified "Motion to Strike", Motion No. M-62694, of Carlos Rodriguez, dated November 6, 2000, and filed November 8, 2000.
  4. Notice of Cross-Motion No. CM-62780, dated and filed November 29, 2000.
  5. Affirmation of Eileen E. Bryant, AAG, in opposition to motion and in support of cross-motion, dated November 29, 2000, with attached exhibits.
Claimant, an inmate proceeding pro se, seeks damages for the loss of personal property he discovered upon being released from the special housing unit at Shawangunk Correctional Facility on March 17, 1999. A Notice of Intention was served upon the Attorney General's office by certified mail, return receipt requested, on June 7, 1999. Claimant previously attempted to file and serve a claim arising from these same allegations, but it was dismissed on jurisdictional grounds for improper service. (Rodriguez v State of New York, Ct Cl., June 28, 2000, Lebous, J., Claim No. 102211, Motion No. M-61675). The current claim, Claim No.102833, is Claimant's attempt to start anew. Claimant moves for an order striking the State's Verified Answer. The State cross-moves for dismissal alleging this new claim suffers from the same infirmities relative to service as did the prior claim.

The Court will examine the State's cross-motion first since it is dispositive of the issues at hand. The State alleges that this Court lacks jurisdiction over Claim No. 102833 because it was served upon the Attorney General's office by regular mail, rather than by personal service or by certified mail, return receipt requested, as required by Court of Claims Act 11 (a).[1] The State submitted a copy of the envelope in which this Claim was mailed to the Attorney General's office which clearly shows markings indicating it was sent ordinary mail, rather than certified mail, return receipt requested. (Affirmation of Eileen E. Bryant, AAG, Exhibit C). Although Claimant has not specifically responded to this cross-motion, his own motion papers addressed the State's affirmative defense by stating:
Notice of Intention to file a Claim, and the Claim itself were filed Pursuant to the Court of Claims Act § 11(a) on the 7th day of June, 1999, and the 13th day of July, 2000. See, Ex. A, Certified by Mail Return Receipt Requested. [footnote omitted]. Therefore, this Court does not lack personal jurisdiction over the defendant nor subject matter jurisdiction of the claim.

(Motion to Strike, ¶ 1; emphasis added).

However, there was no "Exhibit A" attached to Claimant's papers. The Court has also examined the "Certificate of Service" filed by Claimant. Although this "Certificate of Service" states the Claim was served "Certified by Mail Return Receipt Requested" it does not adhere to the requirements of CPLR 306 (b) in that it is unverified. Moreover, Claimant has not submitted the green receipt card that would have been signed and returned to Claimant evidencing proper service.[2] Claimant has failed to meet his burden of establishing proper and timely service. (Boudreau v Ivanov, 154 AD2d 638). Noncompliance with CCA 11 (a) is a fatal jurisdictional defect. Consequently, this Claim must be dismissed. In light of the foregoing, Claimant's motion to strike the State's Verified Answer is deemed moot.

Accordingly, for the reasons stated above, it is ORDERED that the State's cross-motion to dismiss, Cross-Motion No. CM-62780, is GRANTED and Claim No. 102833 is DISMISSED; and Claimant's motion, Motion No. M-62694, to strike Defendant's Verified Answer is DENIED as moot.

January 17, 2001
Binghamton, New York

Judge of the Court of Claims

The State properly pleaded this defense, with particularity, in its Verified Answer so as to preserve this issue for review. (CCA 11 [c]).
Additionally, would not Claimant be in possession of his Facility disbursement form in which he requested monies to pay for the cost of the certified mailing, return receipt requested?