New York State Court of Claims

New York State Court of Claims

SWINT v. N.Y.S. DEPT. OF CORRECTIONAL SRVS., Glenn Goord, Officer G. Perry, Lucien Leclare, Ass't Comm. Counsel, #2004-009-44, Claim No. 109314, Motion No. M-68627


Synopsis


Defendant's motion for an order dismissing the claim based upon improper service (regular, first class mail) was granted.

Case Information

UID:
2004-009-44
Claimant(s):
DENNIS J. SWINT, SR.
Claimant short name:
SWINT
Footnote (claimant name) :

Defendant(s):
N.Y.S. DEPT. OF CORRECTIONAL SRVS., Glenn Goord, Officer G. Perry, Lucien Leclare, Ass't Comm. Counsel
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109314
Motion number(s):
M-68627
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
DENNIS J. SWINT, SR., Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
August 18, 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 claimant's alleged 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

The Court notes that claimant has not responded to this motion to dismiss, nor has he contacted the Court by any other manner regarding this motion.

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). The provisions of § 11(a) are jurisdictional prerequisites to the institution and maintenance of a claim, and as such must be strictly construed. 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 matter, defendant asserts that this claim was served upon the Attorney General by regular, first class mail. Defendant has attached a copy of the envelope in which the claim was mailed (see Exhibit B to Items 1,2) on which postage in the amount of $.60 is affixed. Such postage is inadequate to cover the cost of certified mail, return receipt requested, and there are no markings on the envelope to indicate that the claim was served in compliance with statutory requirements.

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.

Accordingly, it is

ORDERED, that Motion No. M-68627 is hereby GRANTED; and it is further

ORDERED, that Claim No. 109314 is hereby DISMISSED.



August 18, 2004
Syracuse, New York

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