New York State Court of Claims

New York State Court of Claims

BURROUGH v. THE STATE OF NEW YORK, #2002-005-521, Claim No. 99747, Motion No. M-64761


Synopsis


Defendant's motion for dismissal of the claim is granted.

Case Information

UID:
2002-005-521
Claimant(s):
SHAMEL BURROUGH
Claimant short name:
BURROUGH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99747
Motion number(s):
M-64761
Cross-motion number(s):

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

Signature date:
March 13, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On March 13, 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 Annexed
  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 and the Notice of Intention to file a Claim were improperly served by regular mail in contravention of the service requirements of Court of Claims Act §11(a)(i). Defendant attaches copies of the envelopes reflecting such service and the Notice of Intention and Claim as Exhibits A and B, respectively.

Furthermore, the Defendant alleges that it has preserved these defenses, as required, with particularity in its Answer as its Fourth and Fifth Affirmative Defenses. A review of the affirmative defenses reveals that they allege the jurisdictional infirmity of defective service by regular mail and not by personal service or certified mail, return receipt requested, as required by §11(a).

Additionally, although not raised in the motion before me, I note that the Defendant's Sixth Affirmative Defense alleges that the claim is defective because it is unverified.

Court of Claims Act §11(c) addresses the grounds alleged in the Fourth and Fifth Affirmative Defenses:
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 Claimant has not responded to or disputed the allegations set forth in this motion and in the Fourth and Fifth Affirmative Defenses. 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).

Even had I not dismissed the claim on the aforesaid grounds, the failure to verify the claim is a non-waivable defense, although notably it was raised in the Sixth Affirmative Defense, is a fatal jurisdictional defect, and dismissal would have been granted on that ground (Martin v State of New York, 185 Misc 2d 799).


March 13, 2002
Rochester, New York

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