William Garland, the Claimant herein, alleges in Claim No. 101053 he was
wrongfully confined while he was incarcerated at Sing Sing Correctional Facility
(hereafter Sing Sing). Trial of the matter was held at Sing Sing on November
On October 11, 2001 the Claimant filed an "Amended Claim" with the Chief Clerk.
As a consequence of the Claimant's having initially withdrawn his Claim in the
previous year, and the file having been closed at the direction of Presiding
Judge Susan Phillips Read on July 12, 2000, Claimant was directed by letter to
move to restore his claim before this court, and such oral application was made
and granted on November 16, 2001. A written application had been sent to the
Attorney General's office, as well as to Chambers, but does not appear to have
been filed with the Chief Clerk's office as required. See
, 22 NYCRR
As an initial, and ultimately concluding matter for reasons which follow,
Defendant made a motion to dismiss the claim based upon its fourth affirmative
defense, a failure to properly serve the claim, pursuant to § 11 Court of
Claims Act. The Attorney General asserted the Claim had been served by regular
mail, not certified mail, as shown by the original envelope containing the
claim. The Attorney General also noted that the amended claim was not served
certified mail but rather by regular mail. The Court reserved decision on the
motion, as well as the State's objection to any consideration of the amended
claim filed by Claimant in the absence of a motion to amend. 22 NYCRR §
206.7(b) and § 3025(b) Civil Practice Law and Rules.
In reviewing the file, the Court notes that in reference to the original claim,
filed September 13, 1999, an affidavit of service appended thereto indicates
that it was served certified mail. No receipts for certified mail are included,
however, nor were they presented at the time of trial. Indeed, in his testimony
before the court the Claimant admitted that the original claim was not served
on the Attorney General by certified mail, return receipt requested.
Claimant did provide the Court with a receipt for certified mail, as well as
disbursement forms for same, showing service on the Attorney General of some
documents on June 7, 2001. [Claimant's Exhibit "1"] The receipt indicates
"received" by the Attorney General's office, and refers to article number 7000
0520 0021 5074 1107. When the Attorney General pointed out that there was no
indication of what was served, Claimant indicated that the Attorney General's
office was sent the "same papers as the
After reviewing paragraph "3" of the amended claim, the certified mail receipts
appended to the amended claim, and an affidavit of service executed by the
Claimant before a Notary Public on October 4, 2001, it seems that what was
served certified mail by the Claimant in June, 2001, was a notice of intention,
not the amended claim. The article number referred to in paragraph "3" of the
amended claim discussing service of a notice of intention is the same as the
certified mail receipts received in evidence. The affidavit of service indicates
that "on the 5
th day of October 2001, with respect to the above action, I served a true copy
of the Notice of Intention and Amended Claim with supporting exhibit upon: Elyse
Angelico, Assistant Attorney General, by mailing a true copy to 101 East Post
Road, White Plains, New York 10601." There is no indication in the affidavit of
service that certified mail was used, nor is there a receipt referable to that
date. Finally, in the affidavit executed by Claimant before a Notary Public on
November 6, 2001, submitted in support of the application to restore his case,
Claimant indicates that service of the amended claim was by regular mail.
The filing and service requirements contained in §§10 and 11 Court of
Claims Act are jurisdictional in nature and must be strictly construed.
Finnerty v New York State Thruway Auth.
, 75 NY2d 721, 722-723 (1989).
Service upon the Attorney General by ordinary mail is generally insufficient to
acquire jurisdiction over the State, unless the State has failed to properly
plead jurisdictional defenses or raise them by motion. §11(c) Court of
Claims Act; Edens v State of New York
, 259 AD2d 729 (2d Dept. 1999);
Philippe v State of New York
, 248 AD2d 827 (3d Dept 1998).
Additionally, the Claimant has the burden of establishing proper service.
Boudreau v Ivanov
, 154 AD2d 638, 639 (2d Dept. 1989). Finally, just as
motions may be served by regular mail, assuming jurisdiction is established
through a validly served claim, it is well settled that an amended claim may be
served regular mail.
Here, the State's Verified Answer pleads the affirmative defense with
particularity, preserving the issue for review. §11(c)(ii) Court of Claims
Act. When a claim is restored, it is placed back on the Court's calender with
whatever jurisdictional infirmities it possesses. If it was not served in a
fashion allowing this Court to exercise jurisdiction - as is the case here - it
must be dismissed. Accordingly, Claim Number 101053 is hereby dismissed in its
Although the objection is moot given the within dismissal, the State's
objection to consideration of the Amended Claim is also sustained. No proper
application was made to amend the pleading as required. 22 NYCRR §
206.7(b); § 3025(b) Civil Practice Law and Rules.
Let Judgment be entered accordingly.