New York State Court of Claims

New York State Court of Claims

ELDRIDGE v. THE STATE OF NEW YORK, #2003-030-512, Claim No. 103910, Motion No. M-65994


Synopsis


Defendant's motion to dismiss pro se inmate claim alleging excessive force for lack of jurisdiction granted. Claim was served on Attorney General by regular mail

Case Information

UID:
2003-030-512
Claimant(s):
MICHAEL L. ELDRIDGE
Claimant short name:
ELDRIDGE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103910
Motion number(s):
M-65994
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
MICHAEL L. ELDRIDGE, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
February 3, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers number 1 to 5 were read on Defendant's motion to dismiss Claim


Number 103910 pursuant to Court of Claims Act §§10 and 11:

1,2 Notice of Motion, Affirmation of Jeane L. Strickland Smith, Assistant Attorney General and accompanying exhibits

  1. Affidavit in Response to Defendant's Affirmation to Dismiss by Michael L. Eldridge, Claimant, and accompanying exhibits
4,5 Filed Papers: Claim, Answer

After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

Claimant alleges in Claim Number 103910 that on or about February 20, 2000 Defendant's agents used excessive force during a pat and frisk procedure at Green Haven Correctional Facility (hereafter Green Haven), resulting in his physical and emotional injury.

On April 11, 2000 a Notice of Intention to File Claim relevant to this incident was served upon the defendant certified mail, return receipt requested. [Affirmation of Jeane L. Strickland Smith, dated October 29, 2002, Exhibit "1"]. On or about March 1, 2001, the Verified Claim was served upon the Attorney General's Office by regular mail. [Id, Exhibit "2"]. Claimant concedes that the claim was served by regular - not certified - mail. [Affidavit in Response of Michael L. Eldridge, dated November 4, 2002, ¶8].

Defendant moves to dismiss the claim based upon its sixth Defense, a failure to serve the claim upon the Attorney General's office by certified mail, return receipt requested. Claimant essentially argues that his service of the Notice of Intention within ninety (90) days of accrual of the claim, by certified mail, return receipt requested, was enough to give this Court jurisdiction over the Claim, despite his failure to serve the Claim either personally, or by certified mail, return receipt requested. Claimant has stated the law incorrectly.

The filing and service requirements contained in §§10 and 11 of the Court of Claims Act are jurisdictional in nature and must be strictly construed. Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 (1989); See, also, Welch v State of New York, 286 AD2d 496, 729 NYS2d 527, 529 (2d Dept 2001); Conner v State of New York, 268 AD2d 706, 707 (3d Dept 2000). Indeed, the statute provides in pertinent part "...[n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim...." Court of Claims Act §10.

Court of Claims Act §11(a)(i) provides that "...a copy [of the claim] shall be served personally or by certified mail, return receipt requested, upon the attorney general..." within the time prescribed in Court of Claims Act §10; and service is complete when it is received in the Attorney General's office. Service upon the Attorney General by ordinary mail is generally insufficient to acquire jurisdiction over the State, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. §11(c) Court of Claims Act; Edens v State of New York, 259 AD2d 729 (2d Dept 1999); Philippe v State of New York, 248 AD2d 827 (3d Dept 1998).

The Claimant has the burden of establishing proper service [Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept 1989)] by a preponderance of the evidence. See, Maldonado v County of Suffolk, 229 AD2d 376 (2d Dept 1996). Regulations require that proof of service be filed with the Chief Clerk within ten (10) days of service on the defendant. 22 NYCRR § 206.5(a).

Here, the Claimant has not established that he served the Claim upon the Attorney General as required, and the Defendant has raised the jurisdictional issue in a timely motion. The timely and proper service[1] of the Notice of Intention in this case only tolled the limitations period to allow for service of the underlying claim within one year of its accrual, rather than ninety (90) days. See, Court of Claims Act §10 3-b. It did not remove, however, the additional statutory requirement that the claim be served either personally, or by certified mail, return receipt requested. Assuming an accrual date of February 20, 2000 the Claimant had until February 20, 2001 to properly serve the claim on the Attorney General. Since he has not done so, Claimant has failed to establish, by a fair preponderance of the credible evidence, that the Attorney General was served with a copy of the claim as required by Court of Claims Act §11(a) . Accordingly, Claim Number 103910 is hereby dismissed for a lack of jurisdiction.



February 3, 2003
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1] There has been no requirement that the Notice of Intention be filed with the Clerk of the Court of Claims since 1995.