New York State Court of Claims

New York State Court of Claims

WILSON v. THE STATE OF NEW YORK, #2004-009-05, Claim No. 108370, Motion No. M-67603


Synopsis


Case Information

UID:
2004-009-05
Claimant(s):
JEVAN D. WILSON The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
WILSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108370
Motion number(s):
M-67603
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
JEVAN D. WILSON, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Mary R. Humphrey, Esq.,
Senior AttorneyOf Counsel.
Third-party defendant's attorney:

Signature date:
February 3, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this pre- answer motion seeking an order of dismissal for claimant's failure to properly serve his claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2

Court of Claims Act, § 11(a) requires that both a notice of intention to file a claim and a claim must be served upon the Attorney General either personally or by certified mail, return receipt requested (Hodge v State of New York, 213 AD2d 766). Furthermore, such provisions are jurisdictional prerequisites to the institution and maintenance of a claim, and as such must be strictly construed (Greenspan Bros. v State of New York, 122 AD2d 249). Service of a claim which is not made in accordance with the provisions of § 11 is insufficient to confer jurisdiction over the State (Hodge v State of New York, supra).

In the affirmation submitted herewith, defendant's attorney affirms that a notice of intention to file a claim was served upon the Attorney General on or about September 12, 2003, and that such notice of intention was served by regular, first class mail. Defendant's attorney also affirms that a claim was subsequently received by the Attorney General's office on October 1, 2003, and that such claim was served by regular, first class mail as well. Defendant's attorney has attached a copy of the envelope in which the claim was mailed (see Exhibit D to Items 1,2) on which postage in the amount of $.60 is affixed. There is no additional postage or any other markings on the envelope to indicate that the claim was served by certified mail, return receipt requested, as required by statute.

Claimant has not submitted any papers in opposition to this motion, and therefore has not submitted any proof whatsoever disputing defendant's assertions that both the notice of intention and claim were improperly served.

The use of ordinary mail to serve a claim upon the Attorney General is insufficient to acquire jurisdiction (Bogel v State of New York, 175 AD2d 493). This Court does not have the authority to cure or overlook defects in the manner of service and therefore this claim must be dismissed.

Accordingly, it is

ORDERED, that Motion No. M-67603 is hereby GRANTED; and it is further

ORDERED, that Claim No. 108370 is hereby DISMISSED.


February 3, 2004
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims