Andrew Oreckinto ("Claimant") filed Claim Number 105929 on April 18, 2002,
stating that the Defendant lost and/or damaged certain items of his personal
property. I held a trial on this matter on September 8, 2003 at Wyoming
Correctional Facility ("Wyoming").
Claimant testified that on February 14, 2002, while being transferred from
Wyoming to Orleans Correctional Facility ("Orleans"), his property was damaged
by correction officers. He believed that this damage resulted from the
intentional retaliation of Wyoming Correction Officers for his having filed a
grievance. He testified, quite convincingly, that his property was damaged at
some point in time between being packed at Wyoming and its arrival at Orleans.
Claimant was very candid and straightforward in his testimony and I found him to
be a very credible witness.
However, at the close of Claimant's case, the Assistant Attorney General moved
to dismiss the claim on the grounds that Claimant failed to serve the claim upon
the Attorney General's Office by certified mail, return receipt requested.
Claimant admitted on cross-examination that he mailed the Attorney General's
copy of the claim to the Court of Claims Clerk's Office and, on a Post-it note,
requested that the Chief Clerk forward the claim to the Attorney General's
Court of Claims Act § 11(a) provides, in relevant part, that a copy of the
claim "shall be served upon the attorney general . . . either personally or by
certified mail, return receipt requested . . ." 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
, 185 Misc 2d 799, 804).
Defendant has adequately demonstrated that service upon the Attorney General
was effected by regular mail, not certified mail, return receipt requested.
Despite the meritorious nature of the claim, I am constrained to dismiss
Claimant's case for lack of
Accordingly, for the reasons stated above, Defendant's motion for dismissal of
the claim is granted and the claim is dismissed. The Clerk is directed to enter