4) Filed documents: Claim and Verified Answer. Upon the foregoing papers,
Defendant's motion is granted. Claimant's motion is denied as moot.
The causes of action set forth in the underlying claim in this matter, filed on
June 26, 2003, relate to an October 25, 2001 incident in which Claimant alleges
he was assaulted by correction officers at Livingston Correctional Facility. As
a result of this incident, criminal charges were brought against Claimant for
his alleged assault upon correction officers. After various court proceedings,
on February 3, 2003, the indictments against Claimant were dismissed without
prejudice. Mr. McCants alleges causes of action for malicious prosecution,
abuse of process, negligence, and excessive use of force. Claimant seeks to
recover the sum of $690,000.00 for the injuries he allegedly received.
In his motion, Claimant seeks an order striking each affirmative defense
asserted in Defendant's Verified Answer. In its cross-motion, Defendant seeks
dismissal of the claim. I will first address Defendant's cross-motion, as this
motion might affect the outcome, or render moot, Claimant's non-dispositive
In its cross-motion, Defendant seeks dismissal of the claim based, inter
alia, upon Claimant's failure to serve the claim by certified mail, return
receipt requested as required by Court of Claims Act §§ 10(3) and
11(a). Defendant's submission indicates that the claim was served upon the
Attorney General's office by certified regular mail, as opposed to certified
mail return receipt requested, on June 20, 2003.
Claimant, while submitting his own motion papers seeking to strike Defendant's
affirmative defenses, has not responded to the Defendant's motion and,
therefore, Defendant's assertions are undisputed.
Court of Claims Act § 11(a) provides, in relevant part, that a copy of the
claim at issue "shall be served personally or by certified mail, return receipt
requested, upon the attorney general." The requirements set forth in Court of
Claims Act § 11 are jurisdictional in nature and, as such, must be strictly
construed (see Finnerty v New York State Thruway Auth., 75 NY2d
721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d
687). The Court is not free to disregard this requirement. "[D]iscretion,
equity, or a harsh result may not temper application of a rule of law"
(Martin v State of New York, 185 Misc 2d 799, 804).
Defendant has adequately demonstrated that service upon the Attorney General
was effected by certified mail, not certified mail, return receipt requested.
Claimant has also failed to submit adequate proof, such as a copy of the return
receipt, or his mailing disbursement form, to demonstrate service upon
Defendant. Service of the claim by certified mail and not by certified mail,
return receipt requested does not satisfy the requirements of Court of Claims
Act § 11 (Pratt v State of New York, Ct Cl, June 20, 2003 [Claim No.
107420, Motion Nos. M-66764, M-66765, CM-66824], Hard, J., UID # 2003-032-057)
and, generally, a claimant is required to produce the return receipt when the
manner of service is challenged (Govan v State of New York, 301 AD2d
757). Claimant has, therefore, failed to meet the literal requirements of Court
of Claims Act § 11, and the claim must, therefore, be dismissed.
Accordingly, for the reasons stated above, it is hereby
ORDERED, that Defendant's cross-motion for dismissal of the claim is
granted and the claim is dismissed in its entirety. Claimant's motion to strike
Defendant's affirmative defenses is denied as moot. The Clerk is directed to
close the file.