New York State Court of Claims

New York State Court of Claims

DAVIS v. THE STATE OF NEW YORK, #2004-015-404, Claim No. 107833, Motion No. M-68202


Synopsis


Claim served upon the Attorney General by regular mail dismissed for lack of jurisdiction and notice of intention which was properly served was not served in a timely manner as required by Court of Claims Act § § 10 and 11.

Case Information

UID:
2004-015-404
Claimant(s):
AARON DAVIS
Claimant short name:
DAVIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107833
Motion number(s):
M-68202
Cross-motion number(s):

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

Signature date:
May 10, 2004
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant's motion to dismiss the claim for lack of jurisdiction pursuant to CPLR 3211 (a) (2) and (8) is granted. The instant pro se claim filed while claimant was an inmate at Mount McGregor Correctional Facility in Wilton, New York seeks unspecified damages for personal injuries arising from his alleged exposure to second hand smoke and asbestos. Claimant also alleges that he was denied permission to wear a hooded sweater. The claim accrued on November 14, 2002.

Claimant served a notice of intention to file a claim upon the Attorney General by certified mail, return receipt requested on May 20, 2003. The claim was served by regular mail on June 26, 2003 as evidenced by a photocopy of the envelope in which it was mailed (defendant's Exhibit A) which bears a postage meter stamp showing postage paid in the amount of $0.83 and contains no indicia of certified mail, return receipt requested. Court records indicate that the claim was filed with the Court on June 5, 2003.

The second and third defenses contained in the answer filed with the Clerk of the Court on August 6, 2003 set forth service and timeliness defenses with particularity as required by Court of Claims Act § 11 (c) in the following manner:
AS AND FOR A SECOND DEFENSE

Fifth: The Court lacks personal jurisdiction over defendant and subject matter jurisdiction of the claim as the claim was served by regular mail and not by certified mail, return receipt requested, or personal service as required by Court of Claims Act § 11.

AS AND FOR A THIRD DEFENSE

Sixth: The Court lacks subject matter jurisdiction of the claim and personal jurisdiction over defendant as the claim is untimely in that neither the claim nor a notice of intention was served within ninety days of the accrual of the claim as required by Court of Claims Act § § 10 and 11.

Defendant moves to dismiss on the grounds that the claim was not served upon the Attorney General by one of the methods of service authorized by Court of Claims Act §11 (a) and that neither the claim nor a notice of intention was served within 90 days of the claim's accrual as required by Court of Claims Act § § 10 and 11. It is alleged that each of these deficiencies deprive the Court of jurisdiction to adjudicate the claim requiring dismissal.

Claimant opposed the motion by an unsworn document entitled "reply to motion to dismiss" in which he makes reference to an otherwise unspecified administrative remedy and a provision of the Uniform Rules for the Court of Claims ( i.e., 22 NYCRR 206.8 sub [b])[1] which is not germane to the instant motion to dismiss.

As noted above, the instant motion is premised, in part, upon claimant's failure to serve the claim upon the Attorney General by one of the two methods prescribed in Court of Claims Act § 11 (a) (1) which in relevant part 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.

It is well established that the service and filing requirements of the Court of Claims Act are jurisdictional in nature. In Lichtenstein v State of New York, 93 NY2d 911, the Court of Appeals quoting from its earlier decision in Dreger v New York State Thruway Auth., 81 NY2d 721, 724, stated: "[B]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed."

"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). Upon the proof presented and in the absence of proof establishing that service of the claim was 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; Spectra Prods. v Indian Riv. Citrus Specialties, 144 AD2d 832).

Moreover, as demonstrated by Exhibit B, it appears that claimant served a verified notice of intention upon the Attorney General by certified mail, return receipt requested on May 14, 2003. The notice of intention is stamped received by the Attorney General on May 20, 2003. Because the only accrual date discernable from the contents of the claim is November 14, 2002, dismissal is also appropriate for claimant's failure to timely file a claim or notice of intention to file a claim pursuant to Court of Claims Act § § 10 and 11 (see Goddard v State of New York, 173 Misc 2d 1002; Brown v State of New York, 89 NY2d 172).

Accordingly, the motion is granted and the claim is dismissed. Dismissal for improper service of the claim renders unnecessary consideration of defendant's alternate ground for dismissal.



May 10, 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 March 16, 2004;
  2. Affirmation of Kathleen M. Resnick dated March 16, 2004 with exhibits;
  3. Undated Reply to motion to dismiss filed March 22, 2004.

[1]This section requires a conference with the Court prior to calendaring a discovery related motion.