New York State Court of Claims

New York State Court of Claims

HERRERA v. STATE OF NEW YORK, #2003-018-213, Claim No. 106988, Motion No. M-66160


Synopsis


Defendant's motion to dismiss claim is granted pursuant to Court of Claims Act §11.

Case Information

UID:
2003-018-213
Claimant(s):
LUIS HERRERA
Claimant short name:
HERRERA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106988
Motion number(s):
M-66160
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
LUIS HERRERAPRO SE
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: TIMOTHY P. MULVEY, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 24, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
The defendant brings a pre-answer motion to dismiss the claim for lack of jurisdiction. Claimant has not submitted any response to the motion.

Defendant argues that the Court lacks personal jurisdiction over the claim because the claimant failed to timely serve a notice of intention or claim in accordance with Court of Claims Act §§10 and 11. Defendant argues that the claim which was served upon the attorney general on November 25, 2002 was served by regular mail, not certified mail, return receipt requested as required by Court of Claims Act §11(a). Defendant has attached a copy of the envelope in which the claim was sent as Exhibit A. The envelope reflects postage of only 60 cents and no certified mail label.
Court of Claims Act §11 (a)(i) states in relevant part that "the claim shall be filed with the clerk of the court... [and] a copy shall be served upon the attorney general within the time frames hereinbefore provided for filing with the clerk of the court either personally or by certified mail, return receipt requested, or, where authorized by rule of the chief administrator of the courts and upon consent of the attorney general, by facsimile transmission or electronic means, as defined in subdivision (f) of rule twenty-one hundred three of the civil practice law and rules, in such manner as may be provided by rule of court..."

It is well established that the requirements for service on the attorney general are jurisdictional and must be strictly construed (
Bryne v State of New York, 104 AD2d 782, 783, lv denied 64 NY2d 607). Service by regular mail is not service sufficient to commence an action in this Court and the Court cannot ignore the service defect (see, Bogel v State of New York, 175 AD2d 493, 494 ["[s]ervice of the claims upon the Attorney General by ordinary mail was insufficient to acquire jurisdiction over the state" and the claim was therefore properly dismissed]; Diaz v State of New York, 174 Misc 2d 63, 64 ["service by regular mail does not comply with the requirements of the statute and such service is therefore not adequate to acquire jurisdiction over the state." Furthermore, "the court does not have the discretion to disregard the defect"]).
Here, it has been established that claimant served the claim upon the attorney general by regular mail, which is not a method of service in compliance with Court of Claims Act § 11. Thus the court lacks jurisdiction over the defendant.....[.]

Based upon the foregoing, the defendant's motion is GRANTED and claim is hereby DISMISSED.

April 24, 2003
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court considered the following documents in deciding this motion:

Notice of Motion...............................................................................................1

Affirmation of Timothy P. Mulvey, Esquire, Assistant Attorney

General, in support, with exhibits attached thereto...............................2


Filed documents:


Claim.....................................................................................................3






[.]....

It also appears that the claim is untimely in that it was not served within 90 days of the date of accrual. The claim alleges that the claim accrued on June 2, 2002 and the claim was not served until November 25, 2002. The defendant asserts that no notice of intention was ever served (See, Court of Claims Act §10[3]).