New York State Court of Claims

New York State Court of Claims

BURGESS v. THE STATE OF NEW YORK, #2004-032-086, Claim No. 109069, Motion No. M-68763


Synopsis



Case Information

UID:
2004-032-086
Claimant(s):
HERBERT BURGESS
Claimant short name:
BURGESS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109069
Motion number(s):
M-68763
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Herbert Burgess, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Kathleen M. Arnold, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
October 20, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim alleges that on November 3, 2003, while claimant was incarcerated at Clinton Correctional Facility, certain items of his personal property, which had been mailed to his home, were lost through the negligence of State officials. In its answer, defendant State of New York, raised as its second affirmative defense, that the claim was improperly served. This defense was stated with sufficient particularity to satisfy the pleading requirements of Court of Claims Act §11(c).
In support of the motion to dismiss the claim as improperly served, counsel for defendant has submitted a photocopy of the envelope in which the claim was received (Arnold affirmation, Exhibit A), establishing that it was sent by regular mail, rather than by certified mail, return receipt requested (CMRRR) as required by section 11(a) of the Court of Claims Act.
In opposition to the motion, claimant acknowledges that he did not make use of CMRRR service to serve the claim because the instructions on a claim form provided by Department of Correctional Services (DOCS) Law Library states that a claim must be served in accordance with section 11(a) of the Court of Claims Act but does not specify the particular form of service that must be used. The statute referenced, however, makes it clear that service either in person or by CMRRR is required. Claimant was not misled as to the requirements; he just failed to take the necessary step of consulting the statute.

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; Bogel v State of New York, 175 AD2d 493). Consequently, defendant's motion is granted and Claim No. 109069 is dismissed.




October 20, 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 Kathleen M. Arnold, Esq., AAG, with annexed Exhibits;

2. Opposition (captioned "Notice of Motion to Deny Defendant's Motion to Dismiss") of Herbert Burgess, pro se, with annexed Exhibits.

Filed papers: Claim, Answer