New York State Court of Claims

New York State Court of Claims

SPEARMAN v. THE STATE OF NEW YORK, #2001-028-0533, Claim No. 103736, Motion No. M-63203


Synopsis


Defendant moved, pre-answer, to dismiss for failure to comply with Court of Claims Act §§ 10(3) and 11(a). Claim was improperly served by regular mail upon the Attorney General. Court lacks discretion to excuse this jurisdictional defect. Claim dismissed.

Case Information

UID:
2001-028-0533
Claimant(s):
ROBERT SPEARMAN
Claimant short name:
SPEARMAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103736
Motion number(s):
M-63203
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
ROBERT SPEARMAN, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Kathleen M. Resnick, Esq.
Third-party defendant's attorney:

Signature date:
May 4, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on the Defendant's CPLR 3211 motion for dismissal of this claim.

1. Notice of Motion, filed on March 6, 2001.

2. Affirmation of Assistant Attorney General Kathleen M. Resnick, Esq. filed March 6, 2001 with annexed Exhibit 1 (Resnick Affirmation)

3. "Answer" of Robert Spearman, filed March 20, 2001 with annexed Exhibits A & B (Spearman Answer)[1]


4. Reply Affirmation of Assistant Attorney General Kathleen M. Resnick, Esq. filed

March 30, 2001 (Resnick Reply).


5. Reply of Robert Spearman, dated April 2, 2001.

6. Filed papers: Claim, filed January 26, 2001.

Defendant has timely moved, by pre-answer motion, to dismiss the claim. Defendant initially sought dismissal of the underlying claim based upon Claimant's failure to serve the claim within the time period prescribed by Court of Claims Act § 10(3) and for his failure to serve the claim by certified mail, return receipt requested as required by Court of Claims Act § 11(a) (Resnick Affirmation ¶ 6). Following claimant's "answer' to the motion, Defendant acknowledged personal service of a Notice of Intention[2] and renewed its assertion the claim was not properly served. Defendant further maintained that any allegation in the Claim that was not set forth in the Notice of Intention was untimely (Resnick Reply ¶¶ 5, 6).

Claimant's opposition to the motion consists of his assertion that his failure to serve the claim by certified mail, return receipt is "harmless error" (Spearman Answer ¶ 6) and that he had been given "misinformation regarding service upon defendants by certified mail"(Spearman Answer ¶ 3)[3]. Claimant did not address Defendant's assertion that portions of the Claim were untimely filed.

For purposes of this CPLR 3211 (a) (2) and (8) pre-answer motion to dismiss, the Court assumes the truth of the facts as alleged by the claimant and draws all inferences from such facts in favor of the non-moving party (Bassile v Covenant House, 152 Misc 2d 88, affd 191 AD2d 188, lv to app denied 82 NY2d 656).

Court of Claims Act 11 (a) provides, in relevant part, that a copy of the claim at issue "shall be served personally or by certified mail, return receipt requested, upon the attorney general." The requirements set forth in Court of Claims Act 11 are jurisdictional in nature and, as such, must be strictly construed (see, Finnerty v New York State Thruway Auth., 75 NY2d 721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687; see also, Lichtenstein v State of New York, 93 NY2d 911, 912-913 [applying same principles to requirements of Court of Claims Act § 10]). The Court is not free to temper application of a rule of law, whether done in the exercise of discretion, equity or because there is no prejudice and a harsh result will be avoided (see, Martin v State of New York, 185 Misc 2d 799, 804-805, collecting cases).

By conceding the attorney general was not served by certified mail, return receipt requested, any service by claimant via first class mail is improper (see, Dreger v New York State Thruway Authority, 81 NY2d 721; Negron v State of New York, 257 AD2d 652; Philippe v State of New York, 248 AD2d 827). Accordingly, Claimant has failed to meet the literal requirements of Court of Claims Act § 11, and has therefore not properly commenced his action.

Although not necessary for resolution of the instant motion by virtue of the finding the Claim was jurisdictionally defective, were the Court to reach the issue, the Court would find any allegation in the Claim filed on January 26, 2001, and not set forth in the Notice of Intention (Spearman Answer, Exhibit B), as untimely. The Notice of Intention, properly served on the Attorney General on April 24, 2000 (Resnick Reply ¶ 3), and as to the events of January 29, 2000, timely filed, was very specific in alleging 1) that on January 29, 2000 Claimant was assaulted and otherwise mistreated by correction officers and 2) the hiring and retention of those officers was negligent. Accordingly, only those two allegations could be the beneficiary of the extension provisions of Court of Claims Act §§ 10 [3-b] and [3], respectively. Claimant's varied and assorted allegations regarding destruction of personal property, denial of medical attention, harassment, retaliation and constitutional claims, alleged as having accrued between November 30, 1999 and February 8, 2000, absent a properly served Notice of Intention, were not timely commenced in a claim filed and served in January, 2001.

The Court, having found that Claimant did not serve the claim by certified mail, return receipt requested, hereby grants the Defendant's motion to dismiss the claim. Accordingly, Claim No. 103736 shall be and hereby is dismissed.



May 4, 2001
Albany, New York

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




[1] Claimant's "Answer"is not a properly sworn document. 28 USC § 1746, "Unsworn declarations under penalty of perjury", does not have a counterpart in New York practice. CPLR 2106 does not authorize an inmate to make unsworn declarations. Efforts to broaden CPLR 2106 to mirror the federal statute have not been successful (see, CPLR 2106, Practice Commentaries). For purposes of the instant motion, the Court has treated the document as if it were in proper form.
[2] Claimant had served his Notice of Intention as J. Robert Spearman and his Claim as Robert Spearman.
[3] In a letter dated February 12, 2001 and addressed to Court of Claims Presiding Judge Susan P. Read, Claimant stated he received misinformation which led him to believe that service by certified mail was repealed and requested the Court to "overlook any technical errors and deem service upon defendants via regular U.S. mail sufficient..."