Defendant brings a motion seeking dismissal of the claim on the grounds that it
properly served in accordance with Court of Claims Act §§ 10 and 11
and was not properly verified in accordance with Court of Claims Act §
11(b). Claimant did not respond; however, claimant had an opportunity to
address these issues on the day of trial. Claimant admitted the documents were
not sent certified mail, return receipt requested, but argued that the State
would not be prejudiced.
Defendant has attached, as an exhibit to the motion, a copy of the envelope
without any certified mail label and only $1.70 in postage.
The Court of Claims Act § 11(a) states in relevant part that "the claim
shall be filed with the clerk of the court... [and] a copy shall be served
personally or by certified mail, return receipt requested, upon the
Here, the claimant served the claim upon the Attorney General by regular mail.
The failure to properly serve the Attorney General gives rise to a defect in
jurisdiction which if not raised with particularity, is subject to the waiver
provisions of the Court of Claims Act § 11(c).
Defendant has raised with sufficient particularity the affirmative defense of
improper service in its Answer (see the Fourth Affirmative Defense, Exhibit A).
Claimant was put on notice within 40 days of service of the claim and that the
claim was not properly served. In Bogel v State of New York, 175 AD2d
493, the claimant was an inmate of a state correctional facility who filed four
claims against the State seeking damages for personal injuries and loss of
property. All four claims were served upon the Attorney General by regular
mail. There, the State moved to dismiss, the Court of Claims granted the
motion, and the appellate court affirmed holding that "[s]ervice of claims upon
the Attorney General by ordinary mail was insufficient to acquire jurisdiction
over the state" and the claim was therefore properly dismissed (Bogel v State
of New York, supra at 494).
In Diaz v State of New York, 174 Misc 2d 63 , the claimant filed
and served a claim against the State. However, the claim was not served upon
the Attorney General in the manner prescribed by the Court of Claims Act §
11. The court held that "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" (Diaz v State of New York, 174 Misc
2d 63, 64).
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 the
Court of Claims Act § 11. Thus, the Court lacks jurisdiction over the
Moreover it appears that the claim was not properly verified in accordance with
Court of Claims Act § 11(b). This, too, has been held to be a
jurisdictional defect requiring dismissal (Martin v State of New York,
185 Misc 2d 799). The failure to verify the claim, like improper service,
is a fatal jurisdictional defect which cannot be waived or corrected by
amendment, and may be raised sua sponte (Martin v State of New
York, supra; Grande v State of New York, 160 Misc 2d 383; Ferrer v
State of New York, 172 Misc 2d 1; Malloy v State of New York,
unpublished decision of Presiding J. Read, Ct Cl, signed December 10, 2001,
Cl No 104933, Motion No. M-64215 ). In this case, defendant raised this defect
as an affirmative defense in its Answer (see Third Affirmative Defense, Exhibit
Based upon the foregoing, the defendant's motion is GRANTED and claim number
104959 is hereby DISMISSED.
The Court has considered the following documents in deciding this motion:
Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney General
in support with exhibits attached
There was no written response from claimant.