New York State Court of Claims

New York State Court of Claims

DE JESUS v. THE STATE OF NEW YORK, #2002-015-240, Claim No. 105180, Motion No. M-64531


State's pre-answer motion to dismiss claim for lack of jurisdiction granted where claim was served by certified mail without requesting return receiptl.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Rafael DeJesus, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 15, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's pre-answer motion to dismiss this pro se inmate claim for lack of subject matter jurisdiction and/or lack of personal jurisdiction is granted. The claim seeks to recover $45,000.00 in damages stemming from the actions of DOCS personnel in allegedly depriving claimant of one hour of afternoon recreation per day while claimant was suspended from his scheduled afternoon program assignment and placed on keeplock status pending disciplinary action. The deprivation is alleged to have occurred at Mid-State Correctional Facility, Marcy, New York from June 1 through June 5, 2001. The claim further alleges that DOCS negligently trained and/or supervised its staff assigned to housing unit 27-2-East during the same period.

The State's notice of motion seeks dismissal of the claim on the grounds that the Court lacks subject matter jurisdiction and personal jurisdiction over the defendant. Defense counsel's affirmation in support of the motion alleges that the manner of service used to serve the claim was improper and that claimant failed to timely commence the action. The defendant has demonstrated its entitlement to dismissal on the ground that the claim was not served in a manner authorized by Court of Claims Act § 11 (a) (i) and dismissal is warranted.

Claimant alleges that the claim accrued between June 1, 2001 and June 5, 2001. Although the claim was not filed until November 7, 2001 nor served on the Attorney General until November 30, 2001 claimant alleges in paragraph "11" of the claim that a notice of intention to file a claim was filed [sic] in the office of the Attorney General on August 1, 2001. Defense counsel has neither denied service of the purported notice of intention nor attacked the manner by which it was served. Since the defendant has not raised a jurisdictional objection to claimant's service of the notice of intention any objection to its timeliness or the manner of service must be deemed waived (Court of Claims Act § 11 [c]; Knight v State of New York, 177 Misc 2d 181; Adebambo v State of New York, 181 Misc 2d 181).

In support of its allegation that the claim was not served in a manner authorized by Court of Claims Act § 11 (a) the defendant presented as Exhibit B a photocopy of the envelope in which the claim was served upon the Attorney General. The exhibit demonstrates that postage was paid in the amount of $3.59 and although it contains indicia of the use of certified mail it bears none of the usual indicia that a return receipt was requested. Nor was the postage paid under postal rates then in effect sufficient to obtain certified mail, return receipt service.[1]

In response to the motion the claimant failed to submit any proof of proper service such as the original or a photocopy of the return receipt. Absent such proof the defendant's allegations regarding improper service of the claim stand unrefuted and dismissal of the claim is appropriate (see, Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687; Schaeffer v State of New York, 145 Misc 2d 135).

"It is established law that the 'requirements of *** section 11 of the Court of Claims Act are jurisdictional in nature and, therefore, must be strictly construed' " (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722). Viewed from this perspective the use of certified mail only without a return receipt requested is not proper service and is insufficient to acquire jurisdiction over the State (see, Berroa v State of New York, Ct Cl, June 28, 2000 [Claim No. 101644] Ruderman, J., unreported; Philippe v State of New York, 248 AD2d 827; Bogel v State of New York, 175 AD2d 493, 494). Where the Court is satisfied that the manner of service employed does not comply with the mandate of Court of Claims Act 11 (a) (i) it must dismiss the claim (see, Commack Self-Serv. Kosher Meats v State of New York, supra; Philippe v State of New York, supra) unless the State waived the issue of defective service by failing to assert the defense in either a pre-answer motion to dismiss on that ground or as a defense in its answer (see, Court of Claims Act § 11 (c) (ii); Turley v State of New York, 279 AD2d 819). Here the issue was raised with particularity on the pre-answer motion and accordingly, the claim must be dismissed. It is not necessary to consider the defendant's other grounds for dismissal.

May 15, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated January 4, 2002;
  2. Affirmation of G. Lawrence Dillon dated January 4, 2002 with exhibits;

[1]U.S. Postal Service rates require $2.10 for certified mail service plus $1.50 for return receipt service plus $.34 regular postage. These charges total $3.94.