New York State Court of Claims

New York State Court of Claims

MAYBANK v. THE STATE OF NEW YORK, #2003-031-062, Claim No. 105834, Motion No. M-67023


Synopsis


Unopposed motion to dismiss is granted

Case Information

UID:
2003-031-062
Claimant(s):
TERRENCE MAYBANK
Claimant short name:
MAYBANK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105834
Motion number(s):
M-67023
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
TERRENCE MAYBANK, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 6, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers, numbered 1 to 4, were read on motion by Defendant for an order dismissing the claim:
1. Defendant's Notice of Motion, filed June 27, 2003;
  1. Affirmation of James L. Gelormini, Esq., dated June 25, 2003, with attached exhibit;
3. Correspondence from Claimant, dated June 29, 2003;
4. Filed documents: Claim and Answer. Defendant brings this motion seeking dismissal of the claim based upon Claimant's failure to serve the claim by certified mail, return receipt requested, as required by Court of Claims Act § 11(a). In his underlying claim, filed on April 1, 2002, Claimant alleges that he was assaulted by correction officers on November 7, 2001, at Attica Correctional Facility. Included as Exhibit A of Defendant's submission is a copy of the claim and the envelope in which it was served. The cancelled stamp on the envelope demonstrates that the claim was served upon the Attorney General by first class mail and not by certified mail, return receipt requested.

In his letter response to Defendant's motion, Claimant admits that he did not serve the claim certified mail, return receipt requested, but implies that he did not have the funds to do so at the time, and that Southport Correctional Facility would not advance him the necessary funds.

Court of Claims Act § 11 (a) provides, in relevant part, that a copy of the claim "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). The Court is not free to disregard this requirement. "[D]iscretion, equity, or a harsh result may not temper application of a rule of law" (Martin v State of New York, 185 Misc 2d 799, 804).

Claimant has failed to meet the literal requirements of Court of Claims Act § 11. Service upon the Attorney General by first class mail was improper (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).

Therefore, for the reasons set forth above, it is

ORDERED, that Defendant's motion for dismissal of the claim is granted. The Clerk is directed to close the file.

August 6, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims