New York State Court of Claims

New York State Court of Claims

GOPIE v. THE STATE OF NEW YORK, #2004-016-032, Claim No. 104452, Motion No. M-68294


Synopsis


Claim was dismissed as it was served by regular mail.

Case Information

UID:
2004-016-032
Claimant(s):
WINSTON GOPIE and JEANETTE GOPIE
Claimant short name:
GOPIE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104452
Motion number(s):
M-68294
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Oshman, Helfenstein, Mirisola and SchwartzNo Appearance
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Rachel Goldberg, Esq., AAG
Third-party defendant's attorney:

Signature date:
June 18, 2004
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is defendant's motion to dismiss the claim of Winston and Jeanette Gopie. The underlying claim alleges medical malpractice at SUNY Downstate Medical Center "on or about October, 2000, January, 2001 and continuing to April 15, 2001." Claim, ¶3. Having submitted no opposition papers, claimants do not dispute that the claim was served by regular mail. See also ¶4 of the April 6, 2004 affirmation of Rachel Goldberg and exhibit A thereto.

Section 11.a of the Court of Claims Act provides that a claim must be served on the Attorney General either personally or by certified mail, return receipt requested. Regular mail is not an authorized method of service and its use is insufficient to obtain jurisdiction over the State. See, e.g., Philippe v State of New York, 248 AD2d 827, 669 NYS2d 759 (3d Dept 1998).

"It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and accordingly, must be strictly construed . . ." Byrne v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted). See also Mallory v State of New York, 196 AD2d 925, 601 NYS2d 972 (3d Dept 1993).

In sum, this Court lacks jurisdiction over the Gopies' claim. Accordingly, having reviewed the submissions[1] it is ordered that motion no. M-68294 be granted and claim no. 104452 be dismissed.


June 18, 2004
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The Court reviewed defendant's notice of motion with affirmation in support and exhibits A and B. Claimants submitted no opposition papers.