New York State Court of Claims

New York State Court of Claims

MOSELY v. THE STATE OF NEW YORK , #2001-028-0529, Claim No. 103540, Motion No. M-63040


Synopsis


The claim of a prison inmate, who alleges that he acquired tuberculosis as a result of the State's negligence, is dismissed for improper service.

Case Information

UID:
2001-028-0529
Claimant(s):
LEON MOSELY
Claimant short name:
MOSELY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103540
Motion number(s):
M-63040
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
LEON MOSELY, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Belinda A. Wagner, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 20, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on defendant's motion for an order of dismissal .

1. Notice of Motion and Supporting Affiirmation of Belinda A. Wagner, with annexed Exhibits A-D, filed Jan. 26, 2001, ("Wagner affirmation")


2. Affidavit in Opposition ("Rebuttal in Support of Claim") of Leon Mosely, with annexed Exhibits, filed Feb. 15, 2001 ("Mosely affidavit")


3. Supplemental Submission of Leon Mosely, filed Feb. 15, 2001 ("Mosely supplement")


Filed papers: Claim, filed Dec. 15, 2000




This claim has been brought by a prison inmate who alleges that from July 14, 1999 to December 12, 2000, while he was confined to the Ulster Correctional Facility, he was exposed to tuberculosis. The claim does not contains any factual allegations to explain this claimed exposure. Claimant served on the Attorney General a notice of intention to file a claim on November 24, 2000 (Wagner affirmation, ¶3 and Exh A). The claim was then served on the Attorney General and filed with the Court on December 15, 2000. In lieu of answering, the State of New York has moved for an order of dismissal on the ground that the claim was improperly served.[1]

In support of the motion, defense counsel has submitted a photocopy of the envelope in which the claim was received , showing that it was served by regular mail (Wagner affirmation, Exh B). In opposition to the motion, claimant has provided the Court with a number of documents, some of them receipts or return receipt cards relating to certified mail, return receipt requested. None of the receipts or receipt cards relate to service of any document during the month of December 2000, and, more importantly, none of them are addressed to the Attorney General. Claimant indicates that they relate to claimant's efforts in January and February 2001 to file supporting medical papers with the Court of Claims.

Court of Claims Act §11(a) requires that notice of intentions and claims must be served on the Attorney General either in person or by certified mail, return receipt requested. Failure to comply with these requirements 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).

Defendant's motion is granted and the claim is dismissed.


April 20, 2001
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] Defendant also moves for dismissal of the action on the ground that this claim is the same as Claim No. 102494, which was dismissed – and with respect to which a motion to late-file was denied – by former Judge Leonard Silverman (Mosely v State of New York, Claim No. 102494, Motion No. M-61874 and Motion No. M-61988, filed Oct. 20, 2000, Silverman, J.). Claimant asserts that the causes of action are different. Because of the Court's ruling on the more fundamental, jurisdictional ground, there is no need to consider this dispute.