New York State Court of Claims

New York State Court of Claims

DINKINS v. THE STATE OF NEW YORK, #2004-019-512, Claim No. 108601, Motion Nos. M-67845, M-67865


Synopsis


Case Information

UID:
2004-019-512
Claimant(s):
DONNIE T. DINKINS The court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
DINKINS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108601
Motion number(s):
M-67845, M-67865
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
DONNIE T. DINKINS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
January 30, 2004
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In lieu of an answer, the State of New York (hereinafter "State") moves for dismissal pursuant to CPLR 3211 on the grounds this court lacks jurisdiction. (Motion No. M-67865). Claimant moves for assignment of counsel pursuant to CPLR 1101. (Motion No. M-67845). The court has not received any papers by or on behalf of claimant in opposition to the State's motion for dismissal.

In this claim, claimant seeks damages in the amount of $10.41 resulting from "[m]ail fraud by business office & senior mail & supply clerk and extorting me by placing certain amounts on my monthly statements for mail that didn't leave the facility." (Claim, ¶ 2).


By way of this motion, the State indicates it received a notice of intention and a claim relating to this matter in the same envelope on December 1, 2003, by regular mail, rather than by personal service or certified mail, return receipt requested, as required by Court of Claims Act (hereinafter "CCA") 11 (a). The State submits a copy of the envelope in which said claim was received which clearly denotes that it was sent by regular mail. As such, it was claimant's burden to come forward to establish proper service which he has failed to do. (Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). Although claimant has not responded to the State's motion, the court has reviewed the affidavit of service which was attached to this claim. The affidavit of service does not comply with CPLR 306 since it does not indicate the method of service employed. In short, claimant has not come forward with the requisite proof of service, such as a signed green receipt card, as is his burden. (Id.). Parenthetically, the court notes that at least one previous claim by this litigant has been dismissed for the same deficiency in the manner of service. (Dinkins v State of New York, Ct Cl, January 10, 2002, Lebous, J., Claim No. 105081, Motion No. M-64268).


It is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in the CCA are jurisdictional in nature and must be strictly construed. (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). The court is without discretion to waive these requirements and, as such, the claim must be dismissed in its entirety due to claimant's failure to comply with CCA 11 (a).


Accordingly, for the reasons stated above, it is ORDERED that the State's motion for dismissal, Motion No. M-67865, is GRANTED and Claim No. 108601 is DISMISSED. Claimant's motion for the assignment of counsel, Motion No. M-67845, is DENIED as moot.



January 30, 2004
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims



The Court has considered the following papers in connection with these motions:
  1. Claim, filed December 2, 2003.
  2. "Petition", Motion No. M-67845, dated November 3, 2003, and filed December 2, 2003.
3. Affidavit of Donnie T. Dinkins, in support of "Petition", sworn to November 3, 2003.
4. Affirmation of James E. Shoemaker, AAG, in opposition, dated January 20, 2004, and filed January 22, 2004.
5. Notice of Motion No. M-67865, dated January 7, 2004, and filed January 9, 2004.
6. Affidavit of James E. Shoemaker, AAG, in support of motion, sworn to January 7, 2004, with attached exhibit.