New York State Court of Claims

New York State Court of Claims

LARRY v. THE STATE OF NEW YORK, #2003-032-127, Claim No. 107106, Motion Nos. M-67270, CM-67342


Synopsis


Case Information

UID:
2003-032-127
Claimant(s):
MARK LARRY
Claimant short name:
LARRY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107106
Motion number(s):
M-67270
Cross-motion number(s):
CM-67342
Judge:
JUDITH A. HARD
Claimant's attorney:
Mark Larry, pro se
Defendant's attorney:
Hon. Eliot Spitzer, Esq., NYS Attorney GeneralBy: Kathleen M. Resnick, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
December 29, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


This is a bailment claim arising from the apparent destruction of property that claimant was unable to keep at Clinton Correctional Facility and which he sought to send to his home. The claim was filed in December 2002, and in its answer the defendant State of New York raised, as its third affirmative defense, improper service of the claim. This defense was stated with sufficient particularity to satisfy the requirement of section 11(c) of the Court of Claims Act. Claimant has now moved for summary judgment in his favor, asserting that the State's affirmative defenses are "meritless" (Larry affidavit, ¶5). He fails, however, to address the issue of whether the manner of service he employed satisfied the statutory requirements. Defendant has cross-moved for an order dismissing the claim on the ground that it was not properly served. In support of the cross motion, counsel has enclosed a photocopy of the envelope in which the claim was received by the Attorney General, showing that only regular postage was used. Section 11(a) of the Court of Claims Act requires that notices of intention and claims must be served either personally or by certified mail, return receipt requested.

Failure to comply with the time and manner of service requirements contained in sections 10 and 11 of the Court of Claims Act is a fatal jurisdictional defect and deprives this court of the power to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Bogel v State of New York, 175 AD2d 493 [3d Dept 1991]).

Defendant's cross motion is granted, and Claim No. 107106 is dismissed; claimant's motion is denied as moot.


December 29, 2003
Albany, New York

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



The following papers were read on claimant's motion for summary judgment in his favor and on defendant's cross motion for an order to dismiss:
1. Notice of Motion and Supporting Affidavit of Mark Larry, pro se, with annexed Exhibits

2. Affirmation in Opposition of Kathleen M. Resnick, Esq., AAG, with annexed Exhibits

Filed papers: Claim; Answer