New York State Court of Claims

New York State Court of Claims

VEGA v. THE STATE OF NEW YORK, #2002-015-268, Claim No. 105602, Motion No. M-64985


Synopsis


Claim served by ordinary mail dismissed on grounds that failure to serve pursuant to Court of Claims Act § 11 (a) (i) deprives Court of jurisdiction to adjudicate the claim

Case Information

UID:
2002-015-268
Claimant(s):
WILFREDO VEGA
Claimant short name:
VEGA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105602
Motion number(s):
M-64985
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Wilfredo Vega, Pro SeNo Appearance
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 26, 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-64985) for lack of jurisdiction due to the improper service of the claim is granted. The claim filed on February 13, 2002 apparently seeks to recover $750,000.00 in damages allegedly resulting from the negligent denial of additional physical therapy by DOCS personnel at Mid-State Correctional Facility, Marcy, New York on or about April 13, 2001. Claimant's application for a reduction of the filing fee imposed by Court of Claims Act § 11-a filed in conjunction with the claim was granted by order of Presiding Judge Susan Phillips Read dated February 27, 2002.

By pre-answer motion dated March 29, 2002 the defendant seeks an order pursuant to CPLR 3211 (a) (2) and (a) (8) and pursuant to Court of Claims Act § § 10 (9), 11 (a) and 11 (b) dismissing the claim for lack of jurisdiction.

In support of its motion, the defendant has submitted the affirmation of Assistant Attorney General G. Lawrence Dillon dated March 29, 2002 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 A. The Court is able to discern a postage meter stamp from Mid-State Correctional Facility, Marcy, New York dated February 19, 2002 in the amount of $.34. The Assistant Attorney General's allegations concerning service of the claim by regular mail are not disputed by the claimant nor has the claimant, who failed to oppose this motion, 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). Defendant having established that service of the claim was not 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). It is unnecessary to address the other grounds for dismissal set forth in defendant's motion papers where jurisdiction is obviously lacking.

Accordingly, the instant claim is dismissed.


June 26, 2002
Saratoga Springs, New York

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


The Court considered the following papers:
1. Notice of motion dated March 29, 2002;
  1. Affirmation of G. Lawrence Dillon dated March 29, 2002 with exhibits;