New York State Court of Claims

New York State Court of Claims

WIGFALL v. THE STATE OF NEW YORK, #2002-019-574, Claim No. 106471, Motion No. M-65774


Synopsis


State's motion to dismiss granted due to Claimant's failure to properly serve claim or to properly verify claim in compliance with CCA 10 and 11; Claim dismissed.

Case Information

UID:
2002-019-574
Claimant(s):
JOSEPH WIGFALL
Claimant short name:
WIGFALL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106471
Motion number(s):
M-65774
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
JOSEPH WIGFALL, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: James E. Shoemaker, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
September 30, 2002
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant State of New York (hereinafter "State") moves for dismissal pursuant to CPLR 3211 on the grounds this Court lacks jurisdiction. Claimant, an inmate appearing pro se, opposes the motion.


The Court has considered the following papers in connection with this motion:
  1. Claim, filed August 7, 2002.
  2. Notice of Motion No. M-65774, dated September 9, 2002, and filed September 11, 2002.
  3. Affidavit of James E. Shoemaker, AAG, in support of motion, sworn to September 9, 2002, with attached exhibits.
  4. "REPLY MOTION" of Joseph Wigfall, in opposition to motion dated September 11, 2002, and filed September 18, 2002, with attachments.
The underlying claim alleges that on January 30, 2002 officials at Elmira Correctional Facility committed, among other things, negligence and/or medical negligence in prohibiting Claimant from wearing sunglasses indoors despite his possession of a facility permit allowing him to do so. A Notice of Intention was served on the Office of the Attorney General on March 1, 2002 by way of certified mail, return receipt requested. The Claim was served on the Office of the Attorney General on August 7, 2002 by regular mail and filed in the Office of the Clerk on that same date.


By way of this motion and in lieu of an Answer, the State seeks dismissal on two separate grounds, namely Claimant's failure to properly serve the Claim, as well as his failure to properly verify the same. The State contends that it received this Claim on August 7, 2002 by regular mail, rather than by personal service or certified mail, return receipt requested, as required by Court of Claims Act (hereinafter "CCA") 11 (a). In support of this assertion, the State submits a copy of the envelope in which said Claim was received which clearly denotes that it was sent by regular mail. The Court notes that the affidavit of service contained in the Court's file also reveals service by regular mail. Claimant argues that any deficiencies in pleading or service should be overlooked due to his pro se status.


However, it is well-settled that the filing and service requirements contained in the CCA are jurisdictional in nature and must be strictly construed. (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). As such, it was Claimant's burden to come forward to establish proper service which he has failed to do. (Boudreau v Ivanov, 154 AD2d 638; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). The Court is without discretion to waive these requirements.


The State's alternative argument is valid as well, namely that dismissal of the Claim is also warranted because it lacks a verification pursuant to CCA 11 (b). Although this Claim contains Claimant's signature, his signature is not notarized and, more importantly, there is no verification as described in CPLR 3021. It is well-settled that the failure to verify a claim pursuant to CCA 11 and CPLR 3021 is a non-waivable jurisdictional defect. (Martin v State of New York, 185 Misc 2d 799). As such, this Court may not make allowances for this defect to be cured by way of an amendment. (Grande v State of New York, 160 Misc 2d 383).

Consequently, this Claim must be dismissed due to the aforementioned fatal jurisdictional defects.


Accordingly, for the reasons stated above, it is ORDERED that the State's motion to dismiss, Motion No. M-65774, is GRANTED and Claim No. 106471 is DISMISSED.


September 30, 2002
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims