New York State Court of Claims

New York State Court of Claims

NEWMAN v. STATE OF NEW YORK, #2004-015-419, Claim No. 109198, Motion Nos. M-68568, M-68569, M-68570, M-68571, M-68639, M-68640, M-68705


Synopsis


Court granted State's motion to dismiss claim of disappointed office seeker for lack of jurisdiction stemming from claimant's failure to serve a copy of either of these claims verified on 4/12/04 upon the Attorney General.

Case Information

UID:
2004-015-419
Claimant(s):
CARL C. NEWMAN The caption of this matter was amended sua sponte to reflect the only proper defendant.
Claimant short name:
NEWMAN
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The caption of this matter was amended sua sponte to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109198
Motion number(s):
M-68568, M-68569, M-68570, M-68571, M-68639, M-68640, M-68705
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Carl C. Newman, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, EsquireAssistant Attorney General
Third-party defendant's attorney:

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

Official citation:

Appellate results:

See also (multicaptioned case)
2004-015-420

Decision

Defendant's cross-motion to dismiss the above referenced actions for lack of jurisdiction is granted. Claimant's multiple motions seeking orders amending the respective claims to add a verification; issuing subpoenas duces tecum for records of the Department of Correctional Services; permitting various oral depositions; changing venue of the actions; granting a default judgment and for summary judgment are denied as moot. Claim No. 109198 filed on April 16, 2004 seeks to recover damages for DOCS' failure to answer the claimant's appeal of an administrative decision in which the defendant refused to hire claimant as a New York State Corrections Officer. The claim alleges that it accrued on April 12, 2004 at 9:00 a.m. at the Department's personnel office in Albany.

Claim No. 109199 was also filed on April 16, 2004 and seeks to recover damages for an intentional tort and "breach of duty" allegedly perpetrated by Assistant Attorney General Kathleen Resnick on March 29, 2004. The claim alleges that by letter of the same date Ms. Resnick rejected a previously served claim pursuant to CPLR 3022 on the ground that the claim was not verified. That claim, served upon the Attorney General by certified mail, return receipt requested on March 29, 2004, is not one of the claims at issue on this motion which addresses only Claim Nos. 109198 and 109199, both of which were verified on April 12, 2004 and filed with the Court on April 16, 2004.

The defendant's cross-motion seeks dismissal of both claims on the grounds that neither was served upon the Attorney General as required by Court of Claims Act § 11 and the Court therefore lacks jurisdiction to hear and determine the claims. The defendant's motion is supported by the affidavit of Assistant Attorney General Michael Rizzo and the affidavit of Carol A. McKay, a Senior Clerk in the Albany Office of the Attorney General, who avers that there is no record indicating that either claim was served upon the Attorney General.

Claimant opposed the motion by affidavit alleging that since Assistant Attorney General Resnick did not deny knowledge of the facts underlying the claims in a teleconference on June 22, 2004 and the claims were filed with the Court the defendant was timely served. Claimant, who identifies himself as a paralegal, further alleges that he has two years to file a claim after either the Attorney General or the appropriate department had actual knowledge of the essential facts constituting the claim. Claimant's opposing papers contain a photocopy of four U.S. Postal Service Priority Mail Delivery Confirmation Receipts dated May 6, May 17, May 25, 2004 and June 14, 2004 which indicate that unidentified items were sent to the "NYS Attorney General, The Capitol 12224 Albany, NY" on each of those occasions. Also attached were photocopies of four separate track and confirm statements apparently issued by the U.S. Postal Service showing acceptance of the various mailings. Claimant, however, did not submit an affidavit of service alleging personal service or service by certified mail, return receipt requested upon the Attorney General for either claim and has offered no other proof demonstrating that either of the two claims were served upon the Attorney General in compliance with the requirements of the Court of Claims Act.

Section 11 (a) (i) of the Court of Claims Act provides that a claim shall be served upon the Attorney General "either personally or by certified mail, return receipt requested." Alternative methods of service such as by Federal Express delivery or Untied States Postal Service express mail are not permitted (see Negron v State of New York, 257 AD2d 652; Martinez v State of New York, 282 AD2d 580; Hodge v State of New York, 213 AD2d 766). Service of a claim by priority mail with delivery confirmation is not sufficient to commence an action in this court and the court is without discretion to disregard a defect in service (Howard v State of New York, Ct Cl, November 22, 2002 [Claim No. 106303, Motion No M-65666, UID # 2002-018-193][1] Fitzpatrick, J., unreported). Failure to comply with the service requirements of Court of Claims Act § 11 (a) (i) is a fatal jurisdictional defect requiring dismissal of the claims (Rodriguez v State of New York, 307 AD2d 657; Thompson v State of New York, 286 AD2d 831; Suarez v State of New York, 193 AD2d 1037).

Defendant's motion to dismiss Claim No. 109198 and Claim No. 109199 for lack of jurisdiction arising from claimant's failure to serve the claims upon the Attorney General is granted. Accordingly, the claims are dismissed. Dismissal of the claims renders moot claimant's motions which are for that reason denied.


August 26, 2004
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:

Claim No. 109198

Motion No. M-68568
  1. Notice of motion dated May 25, 2004;
  2. Verification of Carl C. Newman sworn to May 4, 2004;

Motion No. M-68569
  1. Notice of motion dated May 25, 2004;
  2. Verification of Carl C. Newman sworn to May 6, 2004;

Motion No. M-68570
  1. Notice of motion dated May 25, 2004;
  2. Verification of Carl C. Newman sworn to May 6, 2004;

Motion No. M-68571
  1. Notice of motion dated May 25, 2004;
  2. Verification of Carl C. Newman sworn to May 4, 2004;

Motion No. M-68639
  1. Notice of motion dated June 9, 2004;
  2. Verification of Carl C. Newman sworn to June 14, 2004;

Motion No. M-68640
  1. Notice of motion dated June 9, 2004
  2. Verification of Carl C. Newman sworn to June 14, 2004;

Motion No. M-68705
  1. Notice of motion dated June 29, 2004;
  2. Verification of Carl C. Newman sworn to June 29, 2004.

Claim No. 109199

Motion No. M-68565
  1. Notice of motion dated May 25, 2004;
  2. Verification of Carl C. Newman sworn to May 4, 2004;

Motion No. M-68566
  1. Notice of motion dated May 25, 2004;
  2. Verification of Carl C. Newman sworn to May 6, 2004;

Motion No. M-68567
  1. Notice of motion dated May 25, 2004;
  2. Verification of Carl C. Newman sworn to May 6, 2004;

Motion No. M-68641
  1. Notice of motion dated June 14, 2004;
  2. Verification of Carl C. Newman sworn to June 14, 2004;

Motion No. M-68642
  1. Notice of motion dated June 9, 2004;
  2. Verification of Carl C. Newman sworn to June 14, 2004;

Motion No. M-68706
  1. Notice of motion dated June 29, 2004;
  2. Verification of Carl C. Newman sworn to June 29, 2004

Claim Nos. 109198 and 109199


Motion No. CM-68689

  1. Notice of cross-motion dated June 25, 2004;
  2. Affidavit of Michael C. Rizzo sworn to June 25, 2004 with exhibits;
  3. Affidavit of Carol A. McKay sworn to June 25, 2004 with exhibits;
  4. Affidavit of Carl C. Newman sworn to June 29, 2004 with exhibit;
  5. Affidavit of Michael C. Rizzo sworn to July 6, 2004.

[1]Unreported decisions from the Court of Claims are available via the internet at