Opposition Papers: NONE.
Filed papers: Claim, filed March 29, 2002 and Verified Answer, filed May 3,
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,
The Defendant has provided a photocopy of the envelope (see
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
AD2d 827). Accordingly, Claimant has failed to meet the literal requirements of
Court of Claims Act § 11, and has therefore not properly commenced his
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.