New York State Court of Claims

New York State Court of Claims

WEBB v. THE STATE OF NEW YORK, #2003-009-32, Claim No. 106882, Motion No. M-66690


Synopsis


Defendant's motion to dismiss based upon improper service (First Class Mail) was granted.

Case Information

UID:
2003-009-32
Claimant(s):
FREEMAN WEBB The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
WEBB
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106882
Motion number(s):
M-66690
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
FREEMAN WEBB, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
July 29, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has brought this motion seeking an order of dismissal for claimant's failure to properly serve his claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation in Support, with Exhibits 1,2


"Reply to Motion to Dismiss" 3

In his claim, claimant seeks damages based upon an incident which allegedly occurred on October 26, 2001 at Marcy Correctional Facility, when claimant was incarcerated at that facility. Claimant alleges that on this date, his legal papers, books, motions, notes, and personal property were intentionally taken from him by facility officials. The claim apparently alleges both intentional and negligent acts committed by facility officers and/or employees.

In its Answer to this claim, defendant acknowledges that a notice of intention was served on the Attorney General on November 21, 2001. In this motion to dismiss, however, defendant argues that the claim, which was served upon the Attorney General on November 8, 2002, was served by regular, first class mail, and not by certified mail, return receipt requested, as required by statute.

Court of Claims Act, § 11(a) requires that both a notice of intention to file a claim and a claim must be served upon the Attorney General either personally or by certified mail, return receipt requested (Hodge v State of New York, 213 AD2d 766). Furthermore, such provisions are jurisdictional prerequisites to the institution and maintenance of a claim, and as such must be strictly construed (Greenspan Bros. v State of New York, 122 AD2d 249). Service of a claim which is not made in accordance with the provisions of § 11 is insufficient to confer jurisdiction over the State (Hodge v State of New York, supra).

In this particular case, defendant asserts that the claim was served on the Attorney General by regular, first class mail, on November 8, 2002. Defendant's attorney has attached a copy of the envelope in which the claim was mailed (see Exhibit C to Items 1,2) on which postage in the amount of $.74 is affixed. There is no additional postage or any other markings on the envelope to indicate that the claim was served by certified mail, return receipt requested, as required by statute. The use of ordinary mail to serve a claim upon the Attorney General is insufficient to acquire jurisdiction (Bogel v State of New York, 175 AD2d 493). This Court does not have the authority to cure or overlook defects in the manner of service and filing and therefore this claim must be dismissed.

In his answering papers, claimant requests that this Court grant him late claim relief, and he makes reference to Court of Claims Act, § 10(6). Section 10(6), however, requires that any application for permission to serve and file a late claim "shall be made upon motion returnable at any regular or special session of the court". Any such motion must therefore be served and filed in accordance with the Uniform Rules for the Court of Claims, as well as appropriate provisions of the CPLR, upon notice to the Attorney General. In this matter, claimant has not requested such relief in the proper manner, which would afford the State an opportunity to respond. Accordingly, this Court finds that claimant's request for consideration of late claim relief is not properly before the Court, and therefore cannot be considered at this time.

Therefore, it is

ORDERED, that Motion No. M-66690 is hereby GRANTED; and it is further

ORDERED, that Claim No. 106882 is hereby DISMISSED.


July 29, 2003
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims