New York State Court of Claims

New York State Court of Claims

PRATT v. THE STATE OF NEW YORK, #2003-032-057, Claim No. 107420, Motion Nos. M-66764, M-66765, CM-66824


Synopsis


Claim is dismissed because service by certified mail – rather than certified mail, return receipt requested – does not comply with the manner of service requirements of section 11(a).


Case Information

UID:
2003-032-057
Claimant(s):
ANDREW M. PRATT
Claimant short name:
PRATT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107420
Motion number(s):
M-66764, M-66765, CM-66824
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Andrew M. Pratt, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michele M. Walls, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 20, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

This is a claim for personal injuries suffered by claimant when he was allegedly denied appropriate footwear by officials at Franklin Correctional Facility. Claimant alleges that on November 7, 2002, a medical request was issued, ordering a new pair of boots for claimant. A month later, when he reported to pick up his year's allotment of clothing, he did not receive any boots. He continued to wear his old boots, which he states were "falling apart," until January 10, 2003 when they were declared unwearable. He was given a 10-day sneaker pass but was then unable to work at his assignment for safety reasons. On January 15, 2003, claimant was offered a pair of boots that were a half-size too small for him. He accepted those boots, he states, because of the cold and his inability to work, even though he was told that he would not be able to exchange them for one year. Claimant alleges that he has experienced pain and blisters as a result of wearing these improperly fitting boots.

Claimant has instituted two motions relating to this claim. In Motion No. M- 66764, he asks that defendant be directed to produce a complete copy of his record at the Franklin Correctional Facility "state shop." In Motion No. M-66765, claimant seeks to amend his claim to correct errors in the initial claim and to establish that he is "still suffering damages." Defendant has cross-moved for an order of dismissal on the ground that both the notice of intention and the claim were improperly served. Because of its jurisdictional nature, the State's cross motion will be addressed first.

Section 11(a) requires that a claim and (when one is used) a notice of intention must be served either personally or by certified mail, return receipt requested. Pursuant to section 11(c) of the Court of Claims Act, in order for defendant to obtain dismissal of a claim for improper service, the defect must be raised "with particularity" in either the answer or in a pre-answer motion. Here, the State's first and second affirmative defenses set forth, with particularity, the asserted defect in service of the notice of intention and claim, respectively.

In support of her cross motion, defense counsel has submitted photocopies of the envelopes in which claimant's notice of intention (Walls affirmation, Exhibit A) and the claim (id, Exhibit B) were received. Both documents were received by certified mail, but there is no indication on their face that a return receipt was requested. It is necessary for a claimant to make use of the precise method of service required by the statute (Hodge v State of New York, 213 AD2d 766 [3d Dept 1995]["Alternative mailings which do not equate to certified mail, return receipt requested, are inadequate and do not comply with Court of Claims Act § 11(a)"]). When there is a challenge to the manner of service used, a claimant should be able to produce a return receipt (Govan v State of New York, 301 AD2d 757 [3d Dept 2003]). Here, claimant has made no response to defendant's cross motion.

Consequently, defendant's cross motion is granted and Claim No. 107420 is dismissed. Claimant's motions are denied as moot.



June 20, 2003
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims

The following papers were read on claimant's motions to compel discovery and to amend his claim and on defendant's cross motion for an order of dismissal:
1. Notice of Motion and Supporting Affidavit of Andrew M. Pratt, pro se (Motion No. M-66764).

2. Affirmation in Opposition of Michele M. Walls, Esq., AAG (Motion No. M-66764)

3. Notice of Motion and Supporting Affidavit of Andrew M. Pratt, pro se (Motion No. M-66765).

4. Notice of Cross Motion and Supporting Affirmation of Michele M. Walls, Esq., AAG (Cross Motion No. CM-66824).

Filed papers: Claim; Answer