New York State Court of Claims

New York State Court of Claims

GRAHAM v. STATE OF NEW YORK, #2003-018-251, Claim No. 104959, Motion No. M-67183


Synopsis


Claim is dismissed pursuant to §§ 10 and 11 of the Court of Claims Act.

Case Information

UID:
2003-018-251
Claimant(s):
PATRICK GRAHAM
Claimant short name:
GRAHAM
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104959
Motion number(s):
M-67183
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
PATRICK GRAHAMPro 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:
September 4, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings a motion seeking dismissal of the claim on the grounds that it was not

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 attorney-general."

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 [1997], 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 defendant.

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 A).

Based upon the foregoing, the defendant's motion is GRANTED and claim number 104959 is hereby DISMISSED.

September 4, 2003
Syracuse, New York

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


The Court has considered the following documents in deciding this motion:


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


Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney General

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


There was no written response from claimant.