Filed papers: Claim, filed June 19, 2002; Affidavit of Service filed July 22,
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
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
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
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.