New York State Court of Claims

New York State Court of Claims
ADDERLEY v. THE STATE OF NEW YORK, #2004-032-012, Claim No. 108455, Motion No. m-67745
Synopsis

Case Information
UID:
2004-032-012
Claimant(s):
VERNON ADDERLEY
Claimant short name:
ADDERLEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108455
Motion number(s):
m-67745
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Vernon Adderley, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Belinda A. Wagner, Assistant Attorney General,Of Counsel
Third-party defendant’s attorney:

Signature date:
March 8, 2004
City:
Albany
Comments:

Official citation:

Appellate results:
AFFIRMED 35 AD3D 1043 3D DEPT 2006
See also (multicaptioned case)



Decision

This claim, alleging that claimant was injured as a result of medical malpractice at Altona Correctional Facility, was filed and served in October 2003. In lieu of answering, counsel for defendant has moved to dismiss the claim on the ground that it was improperly served. In support of the motion, defendant has submitted a photocopy of the envelope in which the claim was received (Wagner affirmation, Exhibit A), which shows that only regular mail postage was used.
Failure to comply with the time or manner of service requirements contained in sections 10 and 11 of the Court of Claims Act is a fatal jurisdictional defect and, if properly raised by defendant in its answer or in a pre-answer motion, deprives this Court of the power to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Bogel v State of New York, 175 AD2d 493 [3d Dept 1991]). With respect to service, section 11(a) requires that the Attorney General be served either personally or by certified mail, return receipt requested, and consequently claimant has failed to effect proper service.
In his response in opposition to the motion, claimant relies on a 1954 decision (Isereau v State of New York, 207 Misc 665, aff’d sub nom. Farley v State of New York, 3 AD2d 813 [4th Dept 1957) which held that in the circumstances presented there, the claimant’s failure to serve the Attorney General could be excused. At that time, however, section 11 of the Court of Claims Act read, in relevant part:
The claim or notice of intention 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. However, the claimant's failure to serve such copy upon the attorney-general may be excused by the court if the clerk of the court shall have delivered a copy thereof to the attorney-general within the time required
That version of the statute was replaced long ago, and the relevant portion of the statute, now subdivision (a) reads:
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 . . . .
[1]

Inasmuch as claimant has failed to comply with the statutory requirements relating to manner of service and defendant has properly raised this defect in a pre-answer motion to dismiss, defendant’s motion is granted and Claim No. 108455 is dismissed.


March 8, 2004
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


The following papers were read on defendant’s motion for an order of dismissal:
1. Notice of Motion and Supporting Affirmation of Belinda A. Wagner, Esq., AAG, with annexed Exhibit
2. Response in Opposition of Vernon Adderley, pro se, with annexed Exhibits
Filed papers: Claim



[1] The current version of the statute also provides that, upon consent of the Attorney General, service by facsimile transmission or electronic means may also be used.