New York State Court of Claims

New York State Court of Claims

BANNES v. THE STATE OF NEW YORK, #2002-015-228, Claim No. 105259, Motion Nos. M-64444, M-64454


Synopsis


Inmate claim seeking future lost wages and damages for mental anguish stemming from DOCS denial of claimant's request to attend murdered brother's funeral dismissed for lack of jurisdiction due to service of claim by regular mail. Poor person application including request to assign attorney denied as moot.

Case Information

UID:
2002-015-228
Claimant(s):
DONEAL BANNES
Claimant short name:
BANNES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105259
Motion number(s):
M-64444, M-64454
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Doneal Bannes, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 13, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant's pre-answer motion to dismiss the instant claim (M-64454) for lack of jurisdiction due to the improper service of the claim is granted. Claimant's motion (M-64444) pursuant to CPLR § 1101 to proceed as a poor person and for the assignment of an attorney to represent him on the claim pursuant to § 1102 (a) is denied as moot. The claim filed by a pro se inmate on November 26, 2001 seeks to recover $90,000 for "future lost earnings" and $10,000.00 for mental anguish allegedly resulting from the negligence of DOCS personnel at Marcy Correctional Facility (Marcy) in Marcy, New York in denying claimant's request to attend the funeral of his murdered brother in Brooklyn, New York on or about June 1, 2001.

Claimant's application for a reduction of the filing fee imposed by Court of Claims Act § 11-a was granted by order of Presiding Judge Susan Phillips Read dated December 11, 2001. The claimant by the instant motion (M-64444) seeks poor person status and the assignment of an attorney.

By separate pre-answer motion (M-64454) dated December 7, 2001 the State seeks an order pursuant to CPLR 3211 (a) (2) and (a) (8) dismissing the claim for lack of jurisdiction. Since the dismissal of the claim would obviate the need to address claimant's poor person application, the Court will examine the dismissal motion first.

In support of its motion, the State has submitted the affirmation of Assistant Attorney General Joel L. Marmelstein dated December 7, 2001 in which counsel alleges that the instant claim was served upon the Attorney General by regular mail. A photocopy of an envelope purportedly demonstrating such service is attached as Exhibit B. Unfortunately, the photocopy transmitted to the Court by facsimile is impossible to read and the Court is able to discern only a postage meter stamp for Marcy, New York dated November 21, 2001 in the amount of $.57. However, the Assistant Attorney General's allegations concerning service of the claim by regular mail are not disputed by the claimant nor has the claimant proffered any proof demonstrating service of the claim upon the Attorney General using one of the methods prescribed in Court of Claims Act § 11 (a) (i) which provides as follows:
The claim shall be filed with the clerk of the court; and, except in the case of a claim for the appropriation by the state of lands, a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court. Any notice of intention shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for service upon the attorney general. Service by certified mail, return receipt requested, upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general. Personal service upon the attorney general shall be made in the same manner as described in section three hundred seven of the civil practice law and rules.
"Ordinary mail is not one of the methods of service authorized by Court of Claims Act § 11 (a)" (Turley v State of New York, 279 AD2d 819) and "notice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court" (Feinstein v Bergner, 48 NY2d 234, 241). Claimant having failed to establish that service of the claim was accomplished in accordance with the requirements of Court of Claims Act § 11 (a) the Court lacks jurisdiction and the claim must be dismissed (Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687; Spectra Prods. v Indian Riv. Citrus Specialities, 144 AD2d 832).

Accordingly, the instant claim is dismissed and claimant's motion for poor person status and for the appointment of an attorney must be denied as moot.


March 13, 2002
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:

M-64444:
  1. Notice of motion sworn to [sic] dated November 6, 2001 with exhibits;

M-64454:

  1. Notice of motion dated December 7, 2001;
  2. Affirmation of Joel Marmelstein dated December 7, 2001 with exhibits;
  3. Affidavit of Doneal Bannes sworn to December 27, 2001.