New York State Court of Claims

New York State Court of Claims

DEERE v. THE STATE OF NEW YORK, #2004-015-393, Claim No. 106329, Motion No. M-67885


Synopsis


Case Information

UID:
2004-015-393
Claimant(s):
RONALD DEERE The Court hereby amends the caption to name the only appropriate defendant.
Claimant short name:
DEERE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court hereby amends the caption to name the only appropriate defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106329
Motion number(s):
M-67885
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Ronald Deere
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Resnick, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 26, 2004
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant's motion to dismiss the instant claim pursuant to CPLR 3211 (a) (2) and (a) (8) for lack of jurisdiction due to improper service of the claim is granted. The claim dated July 1, 2002 and filed on July 8, 2002 seeks to recover damages allegedly sustained as a result of improper medical diagnosis and treatment of an injury to the Achilles tendon and ligaments of claimant's left leg.

In support of its motion the defendant submitted the affirmation of Assistant Attorney General Kathleen M. Resnick dated January 9, 2004 in which counsel alleges that the instant claim was served upon the Attorney General by regular mail. Exhibit "A" attached to the motion includes a photocopy of the envelope purportedly used to serve the claim. Affixed thereto are five $.34 stamps and no other postage or indicia of service by certified mail, return receipt requested, is evident.

The Assistant Attorney General's allegation concerning service of the claim by regular mail is not disputed by the claimant, who failed to oppose the motion, and the record is devoid of any proof demonstrating service of the claim upon the Attorney General by one of the service methods prescribed in Court of Claims Act § 11 (a) (i) which provides:
The claim shall be filed with the clerk of the court; and, except in the case of a claim for the appropriation by the state of lands, a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court. Any notice of intention shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for service upon the attorney general. Service by certified mail, return receipt requested, upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general. Personal service upon the attorney general shall be made in the same manner as described in section three hundred seven of the civil practice law and rules.
"Ordinary mail is not one of the methods of service authorized by Court of Claims Act § 11 (a)" (Turley v State of New York, 279 AD2d 819) and "the use of ordinary mail to serve the claim upon the Attorney-General is insufficient to acquire jurisdiction over the State" (Philippe v State of New York, 248 AD2d 827). Defendant having raised the defense in its answer with the required specificity (Court of Claims Act § 11[c]) and having established that service of the claim was not accomplished in accordance with the requirements of Court of Claims Act § 11 (a), the Court lacks jurisdiction and the claim must be dismissed (Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687).



March 26, 2004
Saratoga Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of Claims



The Court considered the following papers:
  1. Notice of motion dated January 9, 2004;
  2. Affirmation of Kathleen M. Resnick dated January 9, 2004 with exhibits.