New York State Court of Claims

New York State Court of Claims

DIXON v. THE STATE OF NEW YORK, #2002-005-536, Claim No. 99956, Motion No. M-65040


Synopsis


Defendant's motion to dismiss is granted.

Case Information

UID:
2002-005-536
Claimant(s):
STEVEN DIXON
Claimant short name:
DIXON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99956
Motion number(s):
M-65040
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Steven Dixon,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 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 of the claim on the ground, inter alia, that the claim was improperly served by regular mail in contravention of the service requirements of Court of Claims Act §11(a)(i). Defendant attaches copies of the envelope reflecting such service and the claim as Exhibit A. Defendant also seeks dismissal on the ground that the claim was untimely served and filed more than ninety days following accrual of the underlying cause of action.


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


Court of Claims Act §11(c) addresses the grounds alleged in the Third and Fourth 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 Third and Fourth 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). It is unnecessary therefore for me to address the other grounds for dismissal sought by the Defendant.


Accordingly, the trial of this claim scheduled for June 19, 2002, is canceled.


May 16, 2002
Rochester, New York

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