New York State Court of Claims

New York State Court of Claims

VEGA v. THE STATE OF NEW YORK, #2002-015-297, Claim No. 106104, Motion No. M-65515


Synopsis


Claim dismissed for lack of jurisdiction stemming form service of claim by ordinary mail.

Case Information

UID:
2002-015-297
Claimant(s):
CARLOS VEGA The caption is amended sua sponte to reflect the only properly named defendant.
Claimant short name:
VEGA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption is amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106104
Motion number(s):
M-65515
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Carlos 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:
October 10, 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-65515) pursuant to CPLR 3211 (a) (2) and (a) (8) for lack of jurisdiction due to improper service of the claim is granted. The claim dated May 17, 2002 and filed on May 22, 2002 seeks to recover $75,000.00 in damages allegedly resulting from improper medical diagnosis and treatment of an ear infection which allegedly began on May 16, 1998 and continued until surgical intervention on August 8, 2001. In support of its motion the defendant submitted the affirmation of Assistant Attorney General G. Lawrence Dillon dated June 27, 2002 in which counsel alleges that the instant claim was served upon the Attorney General by regular mail. Exhibit "B" attached to the motion is a photocopy of the envelope purportedly used in serving the claim. Affixed thereto are five $.34 stamps and no other postage or indicia of service by certified mail, return receipt requested, is evident.

The Assistant Attorney General's allegation concerning service of the claim by regular mail are not disputed by the claimant who failed to oppose the motion and the record is devoid of any proof demonstrating service of the claim upon the Attorney General by one of the service methods prescribed in Court of Claims Act § 11 (a) (i) which provides:
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 "the use of ordinary mail to serve the claim upon the Attorney-General is insufficient to acquire jurisdiction over the State" (Philippe v State of New York, 248 AD2d 827). 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.


October 10, 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 June 27, 2002;
  2. Affirmation of G. Lawrence Dillon dated June 27, 2002 with exhibits.