New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2002-032-045, Claim No. 106103, Motion No. M-66373


Synopsis


Claimant's motion to strike defendant's affirmative defense is denied, and the claim is dismissed on the ground that it was improperly served.

Case Information

UID:
2002-032-045
Claimant(s):
ANTONIO BROWN
Claimant short name:
BROWN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106103
Motion number(s):
M-66373
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Antonio Brown, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Paul F. Cagino, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
May 6, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

xxx

This claim seeks compensation for physical injuries suffered by claimant when, it is alleged, he was assaulted by another inmate in a State correctional facility and thereafter received inadequate medical treatment for those injuries and other conditions requiring medical attention. In its answer, defendant State of New York asserted, as its first Affirmative Defense, the following:

That this Court lacks personal jurisdiction as the claim was not served in compliance with Section 11(a) of the Court of Claims Act in that the claim was delivered by ordinary mail instead of served personally or by certified mail, return receipt requested.


This language sets forth the affirmative defenses of improper service with sufficient particularity to satisfy the requirement of section 11(c) of the Court of Claims Act. The language used by defendant provides "adequate and clear notice to any reasonable person that a defect is claimed to exist and that it may at some point be used as the basis of a motion to dismiss" (Sinacore v State of New York, 176 Misc 2d 1, 6; see also Fowles v State of New York, 152 Misc 2d 837). In addition, the defense refers both to the relevant statute and to the requirement that should have been met.

Claimant now moves to strike that affirmative defense. He does not, in fact, argue that he complied with the statutory requirements relating to manner of service but, rather, acknowledges that he made a mistake and requests the Court to excuse it or to allow claimant to reserve the claim in the proper fashion. This is not possible, however, as failure to comply with the time and manner of service requirements contained in sections 10 and 11 of the Court of Claims Act is a fatal jurisdictional defect and deprives this Court of the power to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721, 724; Bogel v State of New York, 175 AD2d 493). In opposition to the motion, defendant has submitted a photocopy of the envelope in which the claim was received (Cagino Affidavit, Exhibit), establishing that it was sent by regular mail. Although defense counsel did not cross move for an order dismissing the claim, in light of this fatal jurisdictional defect, the Court will direct such dismissal, sua sponte.

Claimant's motion is denied, and Claim No. 106103 is dismissed on the ground that it was improperly served.



May 6, 2003
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


The following papers were read on claimant's motion to strike the answer's first affirmative defense:
1. Notice of Motion and Supporting Affidavit of Antonio Brown, pro se

2. Affirmation in Opposition of Paul F. Cagino, Esq., AAG, annexed Exhibit

Filed papers: Claim; Answer