New York State Court of Claims

New York State Court of Claims

SOTO v. STATE OF NEW YORK, #2002-005-510, Claim No. 102668, Motion No. M-65050


Synopsis


Defendant's motion to dismiss the claim herein is granted.

Case Information

UID:
2002-005-510
Claimant(s):
SOTO, ANTHONY 95R6377
Claimant short name:
SOTO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102668
Motion number(s):
M-65050
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Anthony Soto,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Heather R. Rubinstein, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 16, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On May 15, 2002, the following papers, numbered 1 to 4, were read on motion by Defendant for dismissal of the claim:
1, 2 Notice of Motion, Affirmation and Exhibits
  1. Opposing Papers
3, 4 Filed Papers: Claim, Answer

Upon the foregoing papers, this motion is granted.

In this motion, the Defendant seeks dismissal on the ground that the claim was improperly served by regular mail in contravention of the service requirements of Court of Claims Act §11(a)(i). Defendant acknowledges that the Notice of Intention to file a claim was properly served by certified mail, return receipt requested, on or about June 15, 2000, and attaches a copy thereof, with a copy of the envelope reflecting such service, as Exhibit A. Similarly, Defendant attaches a copy of the claim and the envelope with which it was served via regular mail on June 28, 2000[1], as Exhibit B.

Furthermore, the Defendant alleges that it has preserved this defense, as required, in its assertion of various affirmative defenses in its answer. Court of Claims Act §11(c) states:
Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, or (ii) the manner of service requirements set forth in subdivision a of this section is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.
The statutory requirement of course requires that such assertions be made with particularity, and my review of the affirmative defenses reveals that the Eleventh Affirmative Defense alleges the jurisdictional infirmity of the failure to properly and timely serve the claim by personal service or certified mail, return receipt requested, as required by §11(a), within two years of the accrual of the cause of action and does articulate the failure to properly serve the claim as statutorily required.

The Claimant has not responded to or disputed the allegations set forth in this motion, thereby defaulting. Accordingly, there being no dispute that the instant claim was improperly served by regular mail, and the Defendant having properly preserved such defense with particularity, the motion is granted and the claim is dismissed (Turley v State of New York, 279 AD2d 819; Bogel v State of New York, 175 AD2d 493; Baggett v State of New York, 124 AD2d 969).

Accordingly, the trial of this claim, scheduled for June 18, 2002, is canceled.


May 16, 2002
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims




[1] Exhibit B reflects service of the claim on June 28, 2000, not April 12, 1999, as inadvertently recited in Paragraph 4 of the Defendant's Affirmation in Support. The misstatement in no way affects the substance or result of this motion.