New York State Court of Claims

New York State Court of Claims

CONNOR v. THE STATE OF NEW YORK, #2002-031-014, Claim No. 105208, Motion Nos. M-64620, M-64756


Synopsis


Claim served by regular mail fails to comply with the Court of Claims Act §11(a) and must be dismissed.

Case Information

UID:
2002-031-014
Claimant(s):
GARLAND CONNOR
Claimant short name:
CONNOR
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105208
Motion number(s):
M-64620, M-64756
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
GARLAND CONNOR, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 22, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On February 27, 2002, the following papers numbered 1-5 were read on Defendant's motion to dismiss the claim and on Claimant's motion for a change of venue:
  1. Defendant's Notice of Motion, filed January 25, 2002;
  2. Affidavit of Gregory P. Miller, Esq., sworn to January 24, 2002, and attached exhibits;
  3. Claimant's Notice of Motion, filed February 19, 2002;
  4. Affidavit of Garland Connor, sworn to February 14, 2002;
  5. Filed papers: Claim, filed November 13, 2001.
Claimant commenced this action for false imprisonment on December 21, 2001. Before the time in which to answer the claim had expired, Defendant filed motion M-64620 seeking dismissal of the claim based upon Claimant's failure to serve the claim by certified mail, return receipt requested as required by Court of Claims Act § 11(a). Defendant has included as an exhibit a copy of the envelope in which the claim was served. The canceled stamp on the envelope demonstrates that it was sent by first class mail and not by certified mail, return receipt requested. Claimant has not responded to Defendant's motion, but has filed his own motion, M-64756, in which he seeks a change of venue.

The 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 the 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). The Court is not free to disregard this requirement. "[D]iscretion, equity, or a harsh result may not temper application of a rule of law" ( Martin v State of New York, 185 Misc 2d 799, 804).

Claimant has failed to meet the literal requirements of the Court of Claims Act §11. Service upon the Attorney General by first class mail was improper (see, Dreger v New York State Thruway Authority, 81 NY2d 721; Negron v State of New York, 257 AD2d 652; Philippe v State of New York, 248 AD2d 827).

Based upon the foregoing it is:

ORDERED, that Defendant's motion for dismissal of the claim is granted and Claimant's motion for a change of venue is denied as moot. The Clerk is directed to close the file.

April 22, 2002
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims