New York State Court of Claims

New York State Court of Claims

JENKINS v. STATE OF NEW YORK, #2002-018-190, Claim No. 106440, Motion No. M-65816


Synopsis


Defendant's motion to dismiss claim granted pursuant to §§10 and 11 of the Court of Claims Act.

Case Information

UID:
2002-018-190
Claimant(s):
ANTHONY JENKINS
Claimant short name:
JENKINS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106440
Motion number(s):
M-65816
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
ANTHONY JENKINSPro 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 21, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
The defendant brings a pre-answer motion to dismiss the claim for lack of jurisdiction.


Claimant submitted a response to the motion.
Defendant argues that the Court lacks personal and subject matter jurisdiction over the claim because the claimant failed to serve the notice of intention and claim in accordance with Court of Claims Act §§10 and 11. Defendant further argues that the claim must be dismissed for failure to comply with Court of Claims Act §10(9), which requires that before an inmate can file a claim for loss of personal property, the inmate must exhaust all administrative remedies established by the correctional facility for addressing loss of property claims. Defendant notes that there is no indication that claimant has exhausted his administrative remedies.
Claimant responds that he is a "lay person to the law" and did not know that he had to serve his claim by certified mail return receipt requested. Claimant further asserts and provides documentation that he exhausted all administrative remedies before filing his claim with the Court.

Clearly from claimant's submissions, he exhausted his administrative remedies prior to bringing his claim in this Court in accordance with Court of Claims Act §
10(9). Unfortunately, however, improper service of the claim requires dismissal.
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...."

It is well established that the requirements for service on 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 and the Court cannot ignore the service defect (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.
Based upon the foregoing, the defendant's motion is GRANTED and the claim is hereby DISMISSED.


November 21, 2002
Syracuse, New York

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


The Court considered the following documents in deciding this motion:

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

Affirmation of Heather R. Rubinstein, Assistant Attorney

General, in support with exhibit attached thereto......................2


Unsworn, unverified statement of Anthony Jenkins, in opposition.......3


Filed Documents:


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