New York State Court of Claims

New York State Court of Claims

PERRY v. THE STATE OF NEW YORK, #2002-028-049, Claim No. 105684, Motion No. M-65488


Synopsis


Court's Order to Show Cause - Court directed parties to address Claimant's apparent failure to comply with the service requirements of Court of Claims Act section 11. Defendant established no service. Claim dismissed

Case Information

UID:
2002-028-049
Claimant(s):
ROBERT LEE PERRY 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:
PERRY
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):
105684
Motion number(s):
M-65488
Cross-motion number(s):

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

Signature date:
August 29, 2002
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on the Court's motion, brought on by Order to Show Cause, for clarification from the parties regarding service of this Claim.

1. Order to Show Cause, filed on July 17, 2002;

2. Affidavit of Carol A. McKay, sworn to on the 23rd day of July, 2002 with annexed
Exhibit A (McKay Affidavit)

3. Letter in opposition from Robert Lee Perry (Perry Letter) filed July 26, 2002 .

Filed papers: Claim, filed March 4, 2002.


On March 4, 2002, a claim was filed with the Court seeking payment on an allegedly winning New York State Lottery ticket. The Claim was assigned Claim No. 105684.

On July 15, 2002, a review of the file revealed that Defendant had never filed an

answer to the Claim and, consequently, the Court issued an Order to Show Cause directing both parties to provide statements relating to service of this Claim. Responding for Defendant, Carol A. McKay, Senior Clerk in the Albany office of the Attorney General, conducted a search of the records of that office and submitted an affidavit regarding the Claim number identified in the Order to Show Cause.

Ms. McKay states that the Attorney General received a copy of a letter from the Court of Claims dated March 19, 2002 (McKay Affidavit, Exhibit A) advising that a claim, assigned Claim No. 105684, had been filed with the Court on March 4, 2002. Ms. McKay further stated that in her review of the Department of Law files she found no record that a claim was ever served upon the Attorney General.

Claimant responded by stating that "I Mr.Robert Lee Perry have [done] what I was supposted [sic] to do and told to do" (Perry Letter) and attached to his submission two certified mail receipts (but not the "green cards"). The mail receipts indicate the items of mail were addressed to the "NYS Lottery" and the "Court of Claims State NY".

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).
Here, Defendant has met its burden by a sworn denial of service based upon a review of the records maintained by the Attorney General (see, McKay Affidavit). Claimant's submission only serves to confirm that the Attorney General was not served with the Claim. Moreover, assuming arguendo the mail was addressed to the Attorney General, Claimant's certified mailing did not also include a request for a return receipt. The failure to serve the attorney general by certified mail, return receipt requested is a fatal jurisdictional defect (De Jesus v State of New York, Ct Cl, Collins, J., May 15, 2002, Claim No. 105180, UID No. 2002-015-240).

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 filed Claim on the Attorney General.

Accordingly, Claim No. 105684 shall be and hereby is dismissed.

August 29, 2002
Albany, New York

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