New York State Court of Claims

New York State Court of Claims

RAY v. THE STATE OF NEW YORK, #2004-032-034, Claim No. 108723, Motion Nos. M-68129, CM-68271


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Mark Ray, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michael W. Friedman, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 1, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This claim is based on the alleged failure of the Department of Correctional Services to house claimant in accordance with its own rules and regulations. In its answer, defendant State of New York set forth five affirmative defenses, including the following:
This Court lacks personal jurisdiction as the claim was not served in compliance with Section 11(a) of the Court of Claims Act in that the claim was delivered by ordinary mail instead of served personally or by certified mail, return receipt requested.

This language sets forth the affirmative defenses of improper service with sufficient particularity to satisfy the requirement of section 11(c) of the Court of Claims Act, as it provides "adequate and clear notice to any reasonable person that a defect is claimed to exist and that it may at some point be used as the basis of a motion to dismiss" (Sinacore v State of New York, 176 Misc 2d 1, 6; see also Fowles v State of New York, 152 Misc 2d 837) and refers both to the relevant statute and to the requirement that should have been met.

Claimant has now moved to strike defendant's affirmative defenses, and defendant has cross-moved for an order dismissing the claim on the ground that the State was not properly served. In opposition to the cross motion, claimant asserts he properly served a notice of intention to file a claim (claim, Exhibit M), implying that that is sufficient to institute an action in this court. That argument has been considered and rejected in the past: "A reading of Court of Claims Act § 11(a) reveals that the questioned ‘or' should be construed as ‘and' in the sense that both notices of intention and claims are subject to the [service] requirements of the section" (Hodge v State of New York, 213 AD2d 766 [3d Dept 1995]). A substantively sufficient and properly served notice of intention may, however, permit a claimant to move for permission to have the notice of intention treated as a claim (Court of Claims Act §10[8]).

In support of the instant cross-motion, counsel for defendant has submitted a photocopy of the envelope in which the claim was received (Friedman Affirmation, Exhibit A), establishing that it was sent by regular mail. Failure to comply with the time and manner of service requirements contained in sections 10 and 11 of the Court of Claims Act is a fatal jurisdictional defect and 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]).

Claimant's motion is denied as moot. Defendant's cross-motion is granted, and Claim No. 108723 is dismissed on the ground that it was improperly served.

June 1, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion to strike defendant's affirmative defenses and on defendant's cross-motion for an order of dismissal:
1. Notice of Motion and Supporting Affidavit of Mark Ray, pro se

2. Notice of Cross-Motion and Supporting Affirmation of Michael W. Friedman, Esq., AAG, with annexed Exhibit

3. Reply (Responsive) Affidavit of Mark Ray, pro se

Filed papers: Claim; Answer