New York State Court of Claims

New York State Court of Claims

HILL v. THE STATE OF NEW YORK, #2003-016-081, Claim No. 103254, Motion No. M-67015


Synopsis


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.

Case Information

UID:
2003-016-081
Claimant(s):
CURTIS HILL
Claimant short name:
HILL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103254
Motion number(s):
M-67015
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Curtis Hill
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Mary B. Kavaney, Esq., AAG
Third-party defendant's attorney:

Signature date:
October 9, 2003
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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[1], 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[2]), 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' submissions[3], IT IS ORDERED that motion no. M-67015 be denied.



October 9, 2003
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The first page of the "motion" annexed to defendant's motion papers contains a handwritten notation of a certified mail article number (2066 481 827) which is identical to the article number contained in the certified mail return receipt annexed to claimant's opposition papers.
  2. [2]This and other decisions of the Court of Claims may be found at the Court's website: www.nyscourtofclaims.state.ny.us.
  3. [3]The following were reviewed: defendant's notice of motion with affirmation in support and exhibits 1-4; and claimant's affidavit in opposition with undesignated affidavit.