New York State Court of Claims

New York State Court of Claims

ACK v. NEW YORK STATE DEPT OF CORRECTIONAL SERVICES, #2003-005-518, Claim No. 107057, Motion No. M-66417


Synopsis



Case Information

UID:
2003-005-518
Claimant(s):
DARRIN ACK 99A2716
Claimant short name:
ACK
Footnote (claimant name) :

Defendant(s):
NEW YORK STATE DEPT OF CORRECTIONAL SERVICES
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107057
Motion number(s):
M-66417
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Darrin Ack,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Heather R. Rubinstein, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 29, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On May 14, 2003, the following papers, numbered 1 to 4, were read on motion by Defendant for dismissal of the claim:

1, 2 Notice of Motion, Affirmation and Exhibits Annexed
  1. Opposing Papers
3, 4 Filed Papers: Claim, Answer

Upon the foregoing papers, this motion is granted.

In this motion the Defendant seeks dismissal of the claim on the ground, inter alia, that the claim was improperly served by regular mail in contravention of the service requirements of Court of Claims Act §11(a)(i). Defendant attaches copies of the claim and the envelope reflecting such service as Exhibit A.

Furthermore, the Defendant alleges that it has preserved this defense, as required, with particularity in the Answer as its Fourth Affirmative Defense. A review of the affirmative defense reveals that it alleges the jurisdictional infirmity of defective service by ordinary mail and not by personal service or certified mail, return receipt requested, as required by §11(a)(i).

Court of Claims Act §11(c) addresses the grounds alleged in the Fourth Affirmative Defense:
Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, or (ii) the manner of service requirements set forth in subdivision a of this section is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.
The Claimant has not responded to or disputed the allegations set forth in this motion and in the Fourth Affirmative Defense. Accordingly, there being no dispute that the instant claim was improperly served by regular mail, and the Defendant having properly preserved such defense with particularity, the motion is granted and the claim is dismissed (Turley v State of New York, 279 AD2d 819; Bogel v State of New York, 175 AD2d 493; Baggett v State of New York, 124 AD2d 969). It is unnecessary therefore for me to address the other grounds for dismissal sought by the Defendant.



May 29, 2003
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims