New York State Court of Claims

New York State Court of Claims

VIGLIOTTI v. THE STATE OF NEW YORK, #2004-015-436, Claim No. 109317, Motion No. M-68867


Synopsis


Inmate's claim seeking $36.99 for emotional distress caused by correction officers' mishandling of his Thanksgiving cheesecake dismissed for lack of jurisdiction based on service of claim by regular mail.

Case Information

UID:
2004-015-436
Claimant(s):
JACK VIGLIOTTI
Claimant short name:
VIGLIOTTI
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109317
Motion number(s):
M-68867
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Jack Vigliotti, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen Arnold, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 27, 2004
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The defendant's cross-motion[1] to dismiss the claim for lack of jurisdiction is granted. The claim seeks to recover damages in the amount of $150.00 for the cost of a spoiled cheesecake ($36.99) and $113.01 for emotional distress as a result of having been deprived of that dessert on Thanksgiving Day 2003. Claimant alleges that upon receipt of the flash frozen and properly packaged cheesecake on November 25, 2003 employees in the package room at Great Meadow Correctional Facility removed the cheesecake and placed it on a shelf for a period of five days. The claim alleges that the cheesecake was inedible when it was ultimately delivered to the claimant on November 29, 2003.

In support of the motion to dismiss the claim defendant submitted the affirmation of Assistant Attorney General Kathleen Arnold. In so far as relevant, Ms. Arnold alleges that the claim was served upon the Attorney General by regular mail and that service by any method other than those authorized by Court of Claims Act § 11 (a) (i) deprives the Court of jurisdiction. Exhibit B attached to the motion includes a photocopy of the envelope purportedly used to serve the claim. Affixed thereto were six $.37 stamps and no other postage or indicia of service by certified mail, return receipt requested.

The Assistant Attorney General's allegations concerning service by regular mail are not disputed by the claimant, who failed to oppose the motion, and the record is otherwise devoid of any proof demonstrating service of the claim by one of the methods prescribed by Court of Claims Act § 11 (a) (i) which provides:
§ 11. Filing, service and contents of claim or notice of intention

a. (i) [Eff. until Sept. 1, 2005, pursuant to L.2002, c. 110, § 3. See, also, par. (i), below.] 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). As the defendant has 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).

Accordingly, the instant claim is dismissed.


October 27, 2004
Saratoga Springs, New York

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


The Court considered the following papers:
  1. Notice of Cross-Motion dated July 27, 2004;
  2. Affirmation of Kathleen M. Arnold dated July 27, 2004 with exhibits.

[1]Although entitled a cross-motion the Clerk's Office treated defendant's motion as an original motion.