New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2002-011-533, Claim No. 105422, Motion Nos. M-64920, CM-64951


Synopsis


Defendant's cross-motion for dismissal on the basis that the claim was not served in the manner required by CCA §11 is granted. Claimant's motion for summary judgment is denied as moot.

Case Information

UID:
2002-011-533
Claimant(s):
RODALTE RODRIGUEZ, 92 T 0303
Claimant short name:
RODRIGUEZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105422
Motion number(s):
M-64920
Cross-motion number(s):
CM-64951
Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Rodalte Rodriguez, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, Esq.,Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 6, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant has moved for an order striking the affirmative defense of lack of jurisdiction and

Defendant has cross-moved to dismiss the claim on the basis that it was not served in the manner required by Court of Claims Act section 11.

Court of Claims Act §11 requires that a claim be served either personally or by certified mail return receipt requested. Failure to serve the claim in the manner prescribed by the statute results in a lack of personal jurisdiction (Thomas v State of New York, 144 AD2d 882). Defendant has provided a copy of the envelope in which the claim was received and the postage markings on the envelope indicate that mailing was done by regular mail.

Claimant, however, maintains that when he submitted the claim for mailing at the correctional facility he requested that it be sent by certified mail return receipt requested. He has included among the papers he submitted a copy of a disbursement form approved on January 2, 2002 on which is typed "claim-legal documents please mail certified return receipt requested". The form also indicates that the item is to be sent to the Attorney General's office. Claimant has also submitted a copy of his inmate account statement which shows that $4.19, the amount on the disbursement form, was charged against his account on January 2, 2002. The envelope in which the claim was received by the Attorney General is postmarked January 2, 2002 but has $0.80 postage on it. The account statement does not show a charge of $0.80.

Though the State may be estopped from asserting improper manner of service as a defense where an inmate-claimant "did what he was supposed to do and all that defendant allowed" in attempting to effect service by certified mail return receipt requested (Wattley v State of New York, 146 Misc 2d 968), claimant has not established that he did all that was required. While it is apparent that claimant requested certified mail return receipt requested, and was charged for it, it is not apparent that he did all that was required to effect certified mail. It may be that the procedure followed by claimant, requesting certified mail on the disbursement form, was all that was required. However, in the absence of some proof of the proper procedure, the court will not assume that claimant did all that was required. Accordingly, the motion to dismiss the affirmative defense of lack of jurisdiction is denied. The cross-motion is granted and the claim is dismissed.


June 6, 2002
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims



Papers Submitted

  1. Notice of Motion dated March 20, 2002
  2. Affidavit in Support of Rodalte Rodriguez verified on the 20th day of March, 2002 with exhibits annexed
  3. Cross-Motion dated March 27, 2002
  4. Affidavit in Support of Michael C. Rizzo, Esq. sworn to the 27th day of March, 2002 with exhibits annexed
  5. Affidavit in Opposition of Rodalte Rodriguez verified on the 4th day of April, 2002 with exhibits annexed