New York State Court of Claims

New York State Court of Claims

CRUM v. STATE OF NEW YORK, #2004-018-293, Claim No. 105233, Motion No. M-67795


Synopsis


Case Information

UID:
2004-018-293
Claimant(s):
ANTHONY CRUM
Claimant short name:
CRUM
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105233
Motion number(s):
M-67795
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
THE PROSKIN LAW FIRM, P.C.By: JEFFRY E. HINES, ESQUIRE
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 25, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant brings a motion to dismiss the claim for lack of subject matter jurisdiction

due to improper service and an untimely claim. Claimant opposes the motion.

Defendant asserts that claimant served a notice of intention on February 9, 2000, by certified mail only, no return receipt was requested. Defendant properly and with particularity set forth its objection in its "First Affirmative Defense" in the Verified Answer (Court of Claims Act §11[c]). The second and third affirmative defenses properly preserved defendant's objection that the claim was untimely.

Claimant acknowledges that the notice of intention was served by certified mail without return receipt requested but requests that the defect be ignored in that he substantially complied with Court of Claims Act § 11.

The Court of Claims Act § 11(a)(i) states in relevant part that "[t]he claim shall be filed with the clerk of the court... [and] a copy shall be served upon the attorney general...either personally or by certified mail, return receipt requested."

It is well established that the requirements for service on the attorney general are jurisdictional and must be strictly construed (Byrne v State of New York, 104 AD2d 782, 783, lv denied 64 NY2d 607). Service by a method other than certified mail return receipt requested or personal service is not service sufficient to commence an action in this Court (Hodge v State of New York, 158 Misc 2d 438, affd 213 AD2d 766). Although claimant sent the notice of intention by certified mail, the failure to request a return receipt results in a fatal jurisdictional defect (Young v State of New York, Ct Cl, Minarik, J., Claim No. 107762, Motion No. M-66910, signed December 11, 2003 [UID # 2003-031-104]). The Court does not have the discretion to disregard a defect in service. Without a properly served notice of intention claimant was required to properly serve and file a claim within 90 days of the date of accrual, of November 12, 1999 (Court of Claims Act §10). No claim was served within that time frame. Therefore, the Court lacks jurisdiction to hear this claim.

Based upon the foregoing, the defendant's motion is GRANTED and the claim is hereby DISMISSED.

March 25, 2004
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims



The Court has considered the following documents in deciding this motion:


Notice of Motion......................................................................................................1


Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney General,

in support with exhibits attached thereto.....................................................2


Affirmation of Jeffry E. Hines, Esquire, in opposition, with exhibits

attached thereto.............................................................................................3