New York State Court of Claims

New York State Court of Claims

HARRELL v. THE STATE OF NEW YORK, #2002-005-553, Claim No. 106460, Motion No. M-66063


Synopsis


Defendant's motion for an order dismissing the claim is granted.

Case Information

UID:
2002-005-553
Claimant(s):
JAMES HARRELL #86A4815
Claimant short name:
HARRELL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106460
Motion number(s):
M-66063
Cross-motion number(s):

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

Signature date:
January 29, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On December 11, 2002, the following papers, numbered 1 to 4, were read on motion by Defendant for an order dismissing 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.

The Defendant seeks dismissal of the claim on the basis of a lack of jurisdiction. The claim herein was filed on August 2, 2002, and served upon the Defendant on August 1, 2002.

The underlying cause of action alleged a loss of personal property accruing on or about June 19, 2002. The Defendant alleges that a Notice of Intention to file a claim herein was served on July 22, 2002, by certified mail, return receipt requested, (as required by Court of Claims Act §11[a]) (Exhibit A). The Defendant also affirms that the claim herein was served by regular mail on August 6, 2002, although my review of Exhibit B reflects service on August 1, 2002, a distinction without a difference for purposes of this motion. Since Claimant has defaulted in this motion, the affirmation of the Defendant is undisputed, and the relief sought is unopposed.

Defendant correctly asserts that improper service of the claim, preserved with particularity in the Sixth Affirmative Defense, as required by Court of Claims Act §11(a), deprives the court of jurisdiction (see, Bogel v State of New York, 175 AD2d 493, and Diaz v State of New York, 174 Misc 2d 63). Service of a claim by regular mail fails to satisfy the service requirements of §11(a).

Furthermore, the Defendant asserts, again, without dispute, that the Claimant has failed to exhaust his administrative remedies as required by Court of Claims Act §10(9) for inmate claims alleging injury or loss of personal property. Defendant has documented the failure to exhaust administrative remedies (Exhibit D).

Accordingly, based upon the above, and given Claimant's default, the Defendant's motion is granted and the claim is dismissed.


January 29, 2003
Rochester, New York

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