New York State Court of Claims

New York State Court of Claims

MUNGER v. STATE OF NEW YORK, #2002-018-188, Claim No. 102808, Motion No. M-65573


Synopsis


Claim dismissed pursuant to Court of Claims Act §§10 and 11.

Case Information

UID:
2002-018-188
Claimant(s):
RICHARD T. MUNGER
Claimant short name:
MUNGER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102808
Motion number(s):
M-65573
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
RICHARD T. MUNGERPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: HEATHER R. RUBINSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 22, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
The defendant brings a motion to dismiss the claim for lack of subject matter jurisdiction


due to improper service. Claimant opposes the motion.
Defendant asserts that claimant served the notice of intention and claim by regular mail rather than certified mail return receipt requested on July 27, 2000. Defendant has attached as part of Exhibit A, copies of the envelopes in which the notice of intention and claim were received. One envelope reflects postage in the amount of 99 cents with no indication that it was sent certified mail return receipt requested. On the second envelope, the amount of the postage cannot be read, however, there is no indication that it was sent certified mail return receipt requested. Claimant, in his response, does not deny that he served the claim on the Attorney General by regular mail.
The Court of Claims Act §11(a) states in relevant part that "[t]he claim shall be filed with the clerk of the court... [and] a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general...Any notice of intention shall be served personally or by certified mail return receipt requested...."

Here, the claimant served the notice of intention and the claim upon the Attorney General by regular mail. The failure to properly serve the Attorney General gives rise to a defect in subject matter jurisdiction. The defendant raised with particularity the improper service of both the notice of intention and the claim in its answer in accordance with Court of Claims Act §11(c).

It is well established that the requirements for service upon the Attorney General are jurisdictional and must be strictly construed (
Byrne v State of New York, 104 AD2d 782, 783, lv denied 64 NY2d 607). Service by regular mail is not service sufficient to commence an action in this Court (See, Bogel v State of New York, 175 AD2d 493, 494 ["[s]ervice of the claims upon the Attorney-General by ordinary mail was insufficient to acquire jurisdiction over the State" and the claims were therefore properly dismissed]; Diaz v State of New York, 174 Misc 2d 63, 64 ["[s]ervice by regular mail does not comply with the requirements of the statute and such service is therefore not adequate to acquire jurisdiction over the State." Furthermore, "the court does not have the discretion to disregard the defect"]).
Here, it has been established that claimant served the notice of intention and the claim upon the Attorney General by regular mail, which is not a method of service in compliance with Court of Claims Act §11. Thus the Court lacks jurisdiction over the defendant.

It appears from claimant's response that he may be seeking relief from Court of Claims Act §10(6) which permits the Court, upon application, to permit the late filing of a claim if the motion is brought within the time limitations set forth in article two of the CPLR. However, claimant has not submitted a proper application in that no notice of motion requesting relief was submitted, no proposed claim was attached to the papers, and were the Court to consider the factors, claimant has failed to show he has a potentially meritorious medical malpractice cause of action with an affidavit from a medical expert (
Jolley v State of New York , 106 Misc 2d 550). Based upon the foregoing, the defendant's motion is GRANTED and the claim is hereby DISMISSED.

November 22, 2002
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:

Notice of Motion...................................................................................1

Affirmation of Heather R. Rubinstein, Assistant Attorney

General with all exhibits attached thereto.................................2


Affidavit of Richard T. Munger, in opposition......................................3


Filed Documents:

Claim.....................................................................................................4


Verified Answer.....................................................................................5