New York State Court of Claims

New York State Court of Claims

WRIGHT v. STATE OF NEW YORK, #2004-018-445, Claim No. 106453, Motion No. M-68762


Synopsis


Claim is dismissed based upon improper service pursuant to Court of Claims Act § 11.

Case Information

UID:
2004-018-445
Claimant(s):
ANTHONY WRIGHT
Claimant short name:
WRIGHT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106453
Motion number(s):
M-68762
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
ANTHONY WRIGHTPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: ED J. THOMPSON, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 30, 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 jurisdiction. Claimant

submitted a letter response to the motion dated July 18, 2004.

Defendant argues that the Court lacks personal and subject matter jurisdiction because the Claimant failed to properly serve his claim in accordance with Court of Claims Act §§ 10 and 11. Defendant argues that although Claimant properly served a "Notice of Intention to File A Claim" by certified mail, return receipt requested, he served the claim by regular mail only on July 30, 2002. Defendant has attached a copy of the envelope within which the claim was mailed evidencing only sixty cents of postage, and no certified mail label (see Exhibit A). Defendant properly preserved its objection to service in the Verified Answer, as its "Fifth Affirmative Defense"(see Court of Claims Act § 11[c]).

Court of Claims Act § 11 (a)(i) states in relevant part that:

the claim shall be filed with the clerk of the court... [and] 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...


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 regular mail is not service sufficient to commence an action in this Court, and the Court cannot ignore the service defect (see Bogel v State of New York, 175 AD2d 493, 494 ["[s]ervice of the claims upon the Attorney General by ordinary mail was insufficient to acquire jurisdiction over the state" and the claim was therefore properly dismissed]; Diaz v State, 174 Misc 2d 63, 64 ["service by regular mail does not comply with the requirements of the statute and such service is therefore not adequate to acquire jurisdiction over the state." Furthermore, "the court does not have the discretion to disregard the defect"]).

Here, Claimant has come forward with no proof of proper service. Defendant has established that Claimant served the claim upon the Attorney General by regular mail, which is not a method of service in compliance with Court of Claims Act § 11. Thus, the Court lacks jurisdiction over the Defendant.

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

November 30, 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 Ed J. Thompson, Esquire, Assistant Attorney General

in support with exhibit attached thereto....................................................2


Letter response from Claimant dated July 18, 2004, in opposition.......................3