New York State Court of Claims

New York State Court of Claims

WEBB v. STATE OF NEW YORK, #2003-018-226, Claim No. 107442, Motion No. M-66620


Synopsis


Defendant's pre-answer motion to dismiss granted pursuant to Court of Claims Act § 11(a).

Case Information

UID:
2003-018-226
Claimant(s):
FREEMAN WEBB
Claimant short name:
WEBB
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107442
Motion number(s):
M-66620
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
FREEMAN WEBBPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 5, 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 a response to the motion.
Defendant argues that the Court lacks personal and subject matter jurisdiction because the claimant failed to properly serve the claim. Defendant received the claim by regular mail, not certified mail, return receipt requested or personal service as required by § 11(a ) of the Court of Claims Act.[1]
It is well-established that the requirements for service upon the attorney general are jurisdictional and must be strictly construed (
Byrne 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 ["Service of the claims upon the Attorney-General by ordinary mail was insufficient to acquire jurisdiction over the State" and the claims were 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..."]).
Service of the claim upon the attorney general by regular mail, which is not an authorized method of service, results in a jurisdictional defect and requires dismissal of the claim.

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


June 5, 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 Joel L. Marmelstein, Esquire, Assistant Attorney General

in support...............................................................................................2



[1]The copy of the envelope in which the claim was delivered which was supposed to be attached as Exhibit B is completely illegible. The Court has relied upon the assistant attorney general's affirmation that service was by regular mail.