New York State Court of Claims

New York State Court of Claims

WEAVER v. THE STATE OF NEW YORK, #2002-028-048, Claim No. 106248, Motion No. M-65572


Synopsis


Defendant's motion granted. Claimant failed to serve attorney general by certified mail, return receipt requested. Claim dismissed.

Case Information

UID:
2002-028-048
Claimant(s):
JAMES WEAVER The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
WEAVER
Footnote (claimant name) :

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

Third-party defendant(s):

Claim number(s):
106248
Motion number(s):
M-65572
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
JAMES WEAVER, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Eileen E. Bryant, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 28, 2002
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on the Defendant's motion to dismiss the Claim.

1. Notice of Motion and Supporting Affirmation of Assistant Attorney General

Eileen E. Bryant, filed on July 29, 2002, with annexed Exhibit A (Bryant Affirmation);

2. Letter of Claimant, James Weaver dated July 31, 2002 (Weaver Letter).
Filed papers: Claim, filed June 19, 2002; Affidavit of Service filed July 22, 2002.

The underlying Claim sounds in bailment, alleging that certain of Claimant's property was lost when he was transferred from Hudson Correctional Facility to Greene Correctional Facility in June, 2001. At the time Claimant filed the Claim, he was residing at Upstate Correctional Facility.

The Defendant has timely moved by pre-answer motion to dismiss the instant Claim on jurisdictional grounds (see, Court of Claims Act §11[c]). Defense counsel's affirmation in support of the motion alleges that the manner of service used to serve the Claim was improper. Specifically, Defendant asserts the Claim was served by certified mail, without a return receipt (Bryant Affirmation, ¶ 6). Claimant opposes the motion.

The Defendant has met its burden of establishing that the Claim was not served in a manner authorized by Court of Claims Act § 11 (a) (i) through the affirmation of counsel and the

photocopy of the envelope (Bryant Affirmation, Exhibit A) in which the Claim was served upon the Attorney General. The exhibit demonstrates that postage was paid in the amount of

$2.67 and it has affixed a certified mail label; however, the postage paid under postal rates then in effect was not sufficient to obtain certified mail, return receipt service[1].

In response to the motion the Claimant failed to submit any proof of proper service such as the original or a photocopy of the return receipt. The affidavit of service, apparently filed in response to the instant motion, does not establish that certified mail, let alone certified mail return receipt requested was utilized. Absent such proof, the Defendant's allegations regarding improper service of the Claim stand unrefuted and dismissal of the Claim is appropriate (see, Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687; Schaeffer v State of New York, 145 Misc 2d 135).

Equally unavailing is Claimant's suggestion that the necessary records to establish service were lost in one of his transfers between correctional facilities. In this regard, the Court notes that in the Claim, which was mailed on June 17, 2002 (see, Exhibit A), Claimant states his address as Upstate Correctional Facility (Claim, ¶ 1), the same address used on his letter submission just over one month later (see, Weaver Letter). There is no evidence that Claimant was transferred between June 2002 and July 2002; thus, the necessary proof could not have been lost by the Department of Correctional Services.

Court of Claims Act § 11 (a) provides, in relevant part, that a copy of the Claim at issue "shall be served personally or by certified mail, return receipt requested, upon the attorney general." The requirements set forth in Court of Claims Act § 11 are jurisdictional in nature and, as such, must be strictly construed (see, Finnerty v New York State Thruway Auth., 75 NY2d 721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). It is established that the use of certified mail only without a return receipt requested is not proper service and is insufficient to acquire jurisdiction over the State (see, Schaeffer v State of New York, 145 Misc 2d 135 Berroa v State of New York, Ct Cl, Ruderman, J., June 28, 2000, Claim No. 101644, UID No.2000-010-027; De Jesus v State of New York, Ct Cl, Collins, J., May 15, 2002, Claim No. 105180, UID No. 2002-015-240). Where, as here, the Court is satisfied that the manner of service employed does not comply with the mandate of Court of Claims Act § 11 (a) (i) it must dismiss the Claim (see, Commack Self-Serv. Kosher Meats v State of New York, supra).

The Court finds that Claimant failed to comply with the requirements of Court of Claims Act §11(a) in that he failed to serve a copy of the Claim upon the Attorney General in a manner authorized by statute.

Based upon the foregoing, the Defendant's motion is granted, and Claim number 106248 shall be and hereby is dismissed.

August 28, 2002
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] U.S. Postal Service rates require, prior to the June 2002 rate increase, $2.10 for certified mail service plus $1.50 for return receipt service plus $.34 regular postage. These charges total $3.94.