New York State Court of Claims

New York State Court of Claims

HIGGINS v. THE STATE OF NEW YORK, #2003-031-103, Claim No. 106834, Motion Nos. M-66859, CM-67102


Synopsis


Case Information

UID:
2003-031-103
Claimant(s):
THOMAS HIGGINS
Claimant short name:
HIGGINS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106834
Motion number(s):
M-66859
Cross-motion number(s):
CM-67102
Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
THOMAS HIGGINS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: TIMOTHY P. MULVEY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 9, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 7, were read on motion by Claimant to compel discovery and cross-motion by Defendant for dismissal of the claim:
1) Claimant's Notice of Motion (M-66859), filed May 27, 2003;
2) Claimant's affidavit, sworn to May 21, 2003;
3) Defendant's Notice of Cross-Motion (CM-67102), filed July 15, 2003;
  1. Affirmation of Timothy P. Mulvey, Esq., dated July 14, 2003;
  2. Affidavit of Carol A. McKay, sworn to May 30, 2003, with attached exhibit;
6) Claimant's Reply Affidavit, sworn to July 28, 2003;
7) Claimant's unsworn "Declaration in Opposition of Defendant's Cross Motion and Request for Sanctions," filed August 1, 2003. Upon the foregoing papers, Defendant's motion is granted. Claimant's motion is denied as moot.

Claimant has moved to compel Defendant to respond to his discovery demands in this matter. Defendant has filed a cross-motion, seeking dismissal of the claim.

In his claim, filed on October 25, 2002, Mr. Higgins alleges that on September 23, 2002, while incarcerated at Auburn Correctional Facility, he was assaulted by corrections officers employed by Defendant.

Defendant seeks dismissal of the claim based upon Claimant's failure to serve the claim upon the Attorney General by certified mail, return receipt requested as required by Court of Claims Act § 11(a). Defendant has submitted the affidavit of Senior Clerk Carol McKay, which indicates that Claimant has failed to serve the claim upon the Attorney General.

Claimant, in opposing Defendant's cross-motion, asserts that he did serve the Defendant "first class mail, certified mail" (Claimant's Reply Affidavit, paragraph 2a). Claimant does not allege that he served the claim certified mail, return receipt requested. This, alone, would be cause for dismissal of the claim (Pratt v State of New York, Ct Cl, June 20, 2003 [Claim No. 107420], Hard, J., UID # 2003-032-057). Claimant has also failed to submit adequate proof, such as a copy of the return receipt, or his mailing disbursement form, to demonstrate that Defendant was properly served (Govan v State of New York, 301 AD2d 757). Self serving statements that the claim was properly served are insufficient to defeat Defendant's motion to dismiss (Washington v State of New York, Ct Cl, December 2, 2002 [Claim No. 105145], Ruderman, J., UID #2002-010-054).

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). 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. Claimant failed to effect service of the claim upon the Attorney General, and the claim must, therefore, be dismissed.

Accordingly, for the reasons stated above, it is hereby

ORDERED, that Defendant's motion for dismissal of the claim is granted and the claim is dismissed in its entirety. Claimant's motion to compel discovery is denied as moot. The Clerk is directed to close the file.

December 9, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims