Motion to dismiss on ground that claim was improperly served by regular mail
was denied, where claimant "re-served" claim by certified mail, return receipt
requested within applicable time frame of Court of Claims Act.
This is defendant's motion to dismiss the claim of Curtis Hill on the ground
that this Court lacks jurisdiction. In his underlying claim, Mr. Hill alleges
that he was improperly treated for scalp cysts while he was incarcerated at
Mid-Orange Correctional Facility. On July 12, 2000, defendant was properly
served with a notice of intention to file a claim. See ¶3 of the June 23,
2003 affirmation of Mary B. Kavaney (the "Kavaney Aff.") and exhibit 1 thereto.
Such notice of intention alleged that the claim arose on April 20, 2000. On
October 19, 2000, Hill served defendant with his claim, but served it by regular
mail. See ¶¶5 and 6 of the Kavaney Aff. Such is not proper service
pursuant to §11 of the Court of Claims Act (the "Act").
Claimant asserts that on November 21, 2001, he re-served his claim by certified
mail, return receipt requested. See ¶8 of the affidavit of Curtis Hill
annexed to his opposition papers and the copy of the certified mail return
receipt annexed thereto.
Defendant concedes that it received "some kind of motion" from claimant on
November 21, 2001, and does not dispute that such was served by certified mail,
return receipt requested
, but states that it
never received the claim by certified mail, return receipt requested. A review
of the "motion" to which defendant refers and submits with its moving papers as
exhibit 3 indicates that Hill's claim is in fact contained therein. In short, I
find that Hill served his claim on defendant by certified mail, return receipt
requested on November 21, 2001. It should be noted that defendant has made no
argument that it was somehow misled or prejudiced by an initial regular mail
service followed by a certified mail, return receipt service.
In sum, I find that Hill's "re-service" by certified mail, return receipt
requested complies with the Act. See Russell v State of New York
, Ct Cl
dated May 29, 2001 (claim no. 102982, motion no. M-62484, unreported, Corbett,
J., UID # 2001-005-518
), in which it was
stated that if "[claimant] indeed ‘re-served' his claim by certified
mail, return receipt requested, merely some two months after allegedly
[properly] serving the Notice of Intention, then the ‘re-service' of the
claim . . . by the required method would be timely . . . Thus to the extent
that the motion seeks dismissal due to improper service of the claim, it appears
that Claimant has timely remedied such improper service, and that aspect of the
motion is denied."
In view of the foregoing, having reviewed the parties'
, IT IS ORDERED that motion no.
M-67015 be denied.