New York State Court of Claims

New York State Court of Claims

EBERT v. THE STATE OF NEW YORK, #2004-015-411, Claim No. 108754, Motion No. M-68320


Synopsis


Claim alleging that claimant was denied prompt and adequate medical treatment for voluntary alcohol poisoning dismissed for lack of jurisdiction stemming from service of claim by ordinary mail.

Case Information

UID:
2004-015-411
Claimant(s):
KATHRYN EBERT
Claimant short name:
EBERT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108754
Motion number(s):
M-68320
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Kathryn Ebert, Pro SeNo Appearance
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Belinda Wagner, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 22, 2004
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant's motion to dismiss the instant claim for lack of jurisdiction pursuant to CPLR 3211 (a) (2) (7) and (8) asserting improper service of the claim is granted. The claim dated December 11, 2003 and filed on January 9, 2004 seeks to recover damages allegedly sustained as a result of the denial of medical treatment for alcohol poisoning by the Greene County Police [sic] Department. In support of the motion the defendant submitted the affirmation of Assistant Attorney General Belinda Wagner dated April 12, 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 which bears a postage meter stamp for $1.06. No 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 upon the attorney general within the times hereinbefore provided for filing with the clerk of the court either personally or by certified mail, return receipt requested, or, where authorized by rule of the chief administrator of the courts and upon consent of the attorney general, by facsimile transmission or electronic means, as defined in subdivision (f) of rule twenty-one hundred three of the civil practice law and rules, in such manner as may be provided by rule of court. Any notice of intention shall be similarly served 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 pre-answer motion 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).



June 22, 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 April 12, 2004;
  2. Affirmation of Belinda A. Wagner dated April 12, 2004 with exhibit.