New York State Court of Claims

New York State Court of Claims

WEBSTER v. THE STATE OF NEW YORK, #2003-015-312, Claim No. 106871, Motion No. M-66097


Claim seeking to recover money damages for defamation of claimant's deceased son dismissed for lack of jurisdiction due to service on the Attorney General by ordinary mail.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
James Webster, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 23, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's pre-answer motion to dismiss the claim for lack of jurisdiction is granted. The claim sounds in defamation allegedly arising from a decision of the New York State Crime Victims Board (Board) which apparently denied a claim on behalf of claimant's deceased son, Deshaun Winstead, who was struck and killed by a motor vehicle. The claim asserts that the Board's decision denied compensation on the grounds that Deshaun Winstead contributed substantially to his own death through his involvement in illegal drug activity. Claimant, who does not purport to be his son's executor or the administrator of his estate, seeks compensation alleging defamation arising from the Board's assertion that the decedent was engaged in illegal activity.

The defendant has moved to dismiss on the grounds that the claim was not served upon the Attorney General by one of the methods of service authorized by Court of Claims Act § 11 (a), the claim lacks specificity as to the date when it accrued and that the claimant lacks standing to bring a claim for defamation on behalf of his deceased son.

The defendant's allegation of improper service of the claim is supported by a copy of the mailing envelope showing postage paid in the amount of $.60 (defendant's Exhibit A), an amount which is clearly insufficient to obtain service by certified mail/return receipt requested.

In opposition to the motion claimant submitted a signed document which was not sworn before a notary public. Even if the claimant's unsworn submission was entitled to judicial cognizance (see, Doumanis v Conzo, 265 AD2d 296; Sam v Town of Rotterdam, 248 AD2d 850) the document does not deny that the claim was served by regular mail but merely alleges that the claim was served "through the United States Postal Service."

Court of Claims Act § 11 (a) (i), provides in relevant part:
The claim shall be filed with the clerk of the court; and, except in the case of a claim for the appropriation by the state of lands, a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court.
It is well established that the service and filing requirements of the Court of Claims Act are jurisdictional in nature. In Lichtenstein v State of New York, 93 NY2d 911, the Court of Appeals quoting from its earlier decision in Dreger v New York State Thruway Auth., 81 NY2d 721, 724, stated "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed."

"Ordinary mail is not one of the methods of service authorized by Court of Claims Act § 11 (a)" (Turley v State of New York, 279 AD2d 819) and "the use of ordinary mail to serve the claim upon the Attorney-General is insufficient to acquire jurisdiction over the State" (Philippe v State of New York, 248 AD2d 827). Upon the proof presented and in the absence of proof establishing that service of the claim was accomplished in accordance with the requirements of Court of Claims Act § 11 (a) the Court lacks jurisdiction and the claim must be dismissed (Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687; Spectra Prods. v Indian Riv. Citrus Specialties, 144 AD2d 832).

The dismissal of the claim for lack of jurisdiction renders academic the defendant's other grounds for dismissal of the claim.

January 23, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated November 19, 2002;
  2. Affidavit of Michael C. Rizzo sworn to November 19, 2002 with exhibits;
  3. "Notice of opposition" of James Webster dated December 12, 2002.