New York State Court of Claims

New York State Court of Claims

MC CANTS v. THE STATE OF NEW YORK, #2004-031-024, Claim No. 107934, Motion Nos. M-67400, CM-67502


Synopsis


Case Information

UID:
2004-031-024
Claimant(s):
ANDRE T. MC CANTS Caption has been amended sua sponte to reflect the only proper Defendant.
Claimant short name:
MC CANTS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
Caption has been amended sua sponte to reflect the only proper Defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107934
Motion number(s):
M-67400
Cross-motion number(s):
CM-67502
Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
ANDRE T. MC CANTS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 30, 2004
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 4, were read on motion by Claimant to strike each affirmative defense asserted in Defendant's Verified Answer, and on cross-motion by Defendant for dismissal of the claim:
1) Claimant's Notice of Motion (M-67400), filed September 17, 2003;
  1. Defendant's Notice of Cross-Motion (CM-67502), filed October 10, 2003;
  2. Affirmation of Thomas G. Ramsay, Esq., affirmed October 8, 2003, with attached exhibits;
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 motion.

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.

April 30, 2004
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims