New York State Court of Claims

New York State Court of Claims

HOWARD v. STATE OF NEW YORK, #2002-018-193, Claim No. 106303, Motion No. M-65666


Synopsis


Defendant's motion to dismiss granted pursuant to Court of Claims Act §11.

Case Information

UID:
2002-018-193
Claimant(s):
ANTHONY HOWARD
Claimant short name:
HOWARD
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106303
Motion number(s):
M-65666
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
ANTHONY HOWARDPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, 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 claim on July 20, 2002 by priority mail with delivery confirmation, rather than by certified mail return receipt requested as required by Court of Claims Act §11(a). Defendant has attached as Exhibit C a copy of the envelope in which the claim was received. The envelope reflects priority mail was used with delivery confirmation. The defendant raised with particularity the improper service of the claim in its answer in accordance with Court of Claims Act §11(c).
Claimant states, in his response to the motion, that he sent his paperwork to the mail room at the correctional facility with a disbursement form completed directing the mail room to send out his legal mail by certified mail return receipt requested. He then states that the facility sent his mail by regular mail.

The Court of Claims Act §11(a) states in relevant part that "the 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..."

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 a method other than certified mail return receipt requested is not service sufficient to commence an action in this Court (See, Martinez v State of New York, 282 AD2d 580; Commack Self-Service Kosher Meats Inc., v State of New York, 270 AD2d 687, 687-688; Hodge v State of New York, 158 Misc 2d 438, affd 213 AD2d 424). The Court is without discretion to disregard a defect in service.
Here, it has been established that claimant served the claim upon the Attorney General by priority mail, which is not a method of service in compliance with the 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 22, 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 Joel L. Marmelstein, Assistant Attorney General,

in support, with exhibits attached thereto..................................2


Letter from Anthony Howard to Hon. Susan P. Read, dated

September 4, 2002....................................................................3