New York State Court of Claims

New York State Court of Claims

HARRIS v. THE STATE OF NEW YORK, #2003-028-515, Claim No. 105825, Motion No. M-66082


Synopsis


Defendant moved to dismiss for failure to comply with Court of Claims Act §11(a). Claim was improperly served by regular mail upon the Attorney General. Claim dismissed.

Case Information

UID:
2003-028-515
Claimant(s):
TRACY B. HARRIS The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
HARRIS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105825
Motion number(s):
M-66082
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
TRACY B. HARRIS, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Kathleen M. Resnick, Esq.
Third-party defendant's attorney:

Signature date:
March 5, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on the Defendant's motion for dismissal of this claim.

1. Notice of Motion, and Supporting Affirmation of Assistant Attorney General Kathleen M. Resnick, Esq. filed November 22, 2002 with annexed Exhibits A and B (Resnick Affirmation)[1]

Opposition Papers: NONE.


Filed papers: Claim, filed March 29, 2002 and Verified Answer, filed May 3, 2002.

Defendant has moved to dismiss the Claim based upon Claimant's failure to serve the claim by certified mail, return receipt as required by Court of Claims Act § 11(a) (Resnick Affirmation ¶ 6). Claimant has failed to oppose the motion.

Court of Claims Act § 11 (a) provides, in relevant part, that a copy of the claim at issue "shall be served personally or by certified mail, return receipt requested, upon the attorney general." The requirements set forth in Court of Claims Act § 11 are jurisdictional in nature and, as such, must be strictly construed (see, Finnerty v New York State Thruway Auth., 75 NY2d 721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687; see also, Lichtenstein v State of New York, 93 NY2d 911, 912-913 [applying same principles to requirements of Court of Claims Act § 10]). The Court is not free to temper application of a rule of law, whether done in the exercise of discretion, equity or because there is no prejudice and a harsh result will be avoided (see, Martin v State of New York, 185 Misc 2d 799, 804-805, collecting cases).

As an initial matter, the Court finds that the State adequately pleaded the service defense with sufficient particularity in its Answer (Resnick Affirmation Exhibit B) to meet the requirement of Court of Claims Act § 11(c) (see, Sinacore v State of New York, 176 Misc 2d 1, 9).

The Defendant has provided a photocopy of the envelope (see Exhibit A) in which the Claim was served to establish same was not served by certified mail, return receipt requested but rather improperly by via first class mail (see, Dreger v New York State Thruway Authority, 81 NY2d 721; Negron v State of New York, 257 AD2d 652; Philippe v State of New York, 248 AD2d 827). Accordingly, Claimant has failed to meet the literal requirements of Court of Claims Act § 11, and has therefore not properly commenced his action[2].

The Court, having found that Claimant did not serve the claim by certified mail, return receipt, hereby grants the Defendant's motion to dismiss the claim. Accordingly, Claim No. 105825 shall be and hereby is dismissed.

March 5, 2003
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] The introductory paragraph of the affirmation mistakenly identifies the affiant as another assistant attorney general.
[2] Even were this Claim served properly, the Court notes another jurisdictional defect; to wit, the absence of a verification, would compel dismissal of the Claim (see, Martin v State of New York, supra).