New York State Court of Claims

New York State Court of Claims

HARRIS v. THE STATE OF NEW YORK, #2004-009-27, Claim No. 108592, Motion No. M-67851


Synopsis


Case Information

UID:
2004-009-27
Claimant(s):
JESSE HARRIS
Claimant short name:
HARRIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108592
Motion number(s):
M-67851
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
JESSE HARRIS, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
April 20, 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 based upon a failure of claimant to properly serve his claim.

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


Affidavit in Opposition, with Attachments 3

In this motion, defendant argues that the claim in this matter was served upon the Attorney General by regular, first class mail, and not by certified mail, return receipt requested, as required by statute.

Court of Claims Act § 11(a) requires that 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, the provisions of § 11 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 this particular matter, defendant asserts that claimant served his claim upon the Attorney General by regular, first class mail on December 1, 2003. Defendant has attached a copy of the envelope in which the claim was mailed (see Exhibit B to Items 1,2) on which three first class stamps have been affixed, representing postage in the amount of $1.11. This amount of postage is inadequate to cover the cost of certified mail, return receipt requested, and additionally, there are no markings on the envelope to indicate that the claim was served by certified mail, return receipt requested, as required by statute.

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 filing and therefore this claim must be dismissed.

Based on the foregoing, therefore, it is

ORDERED, that Motion No. M-67851 is hereby GRANTED; and it is further

ORDERED, that Claim No. 108592 is hereby DISMISSED.


April 20, 2004
Syracuse, New York

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