New York State Court of Claims

New York State Court of Claims

TWITTY v. THE STATE OF NEW YORK, #2004-032-120, Claim No. 108227, Motion No. M-68499


Synopsis


Claim for assault and battery dismissed for lack of jurisdiction due to the improper service of the claim on the Attorney General by ordinary mail.


Case Information

UID:
2004-032-120
Claimant(s):
EUGENE TWITTY The caption of this action has been amended by the Court, sua sponte, to indicate that the State of New York is the only properly named defendant.
Claimant short name:
TWITTY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this action has been amended by the Court, sua sponte, to indicate that the State of New York is the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108227
Motion number(s):
M-68499
Cross-motion number(s):

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

Signature date:
December 2, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The claim alleges that defendant's agent or agents assaulted the claimant on July 15, 2003, while he was incarcerated at Clinton Correctional Facility ("Clinton"). The claim was served on the Attorney General on August 22, 2003, and filed on September 4, 2003. Defendant now moves to dismiss the claim pursuant to CPLR Rule 3211 on the ground that this Court lacks jurisdiction of this matter due to claimant's alleged failure to properly serve the claim.

In support of its motion, defendant annexed a copy of the claim and of the envelope used to mail the claim (Arnold affirmation, Exhibit A). The envelope bears a postage meter stamp of $.60, which is inadequate to cover the postage for certified mail, return receipt requested. Moreover, there are no markings on the envelope to indicate that the claim was served on the Attorney General in any manner other than by regular mail. Claimant has not disputed the manner of service and, in fact, has failed to respond to defendant's motion to dismiss.

Section 11 (a) of the Court of Claims Act requires service of a claim on the Attorney General either personally or by certified mail, return receipt requested. The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]). Ordinary mail is not one of the methods of service authorized by § 11 (a) of the Court of Claims Act (Turley v State of New York, 279 AD2d 819 [3d Dept 2001]), and the use of ordinary mail to serve the claim upon the Attorney General is "insufficient to acquire jurisdiction over the State" (Philippe v State of New York, 248 AD2d 827 [3d Dept 1998 ], citing to Bogel v State of New York, 175 AD2d 493, 494 [3d Dept 1991]).

In its answer (Arnold affirmation, Exhibit B), defendant sets forth the affirmative defense of improper service with sufficient particularity to satisfy the requirements of section 11 (c) of the Court of Claims Act, as it provided "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 [Ct Cl 1998]; see also Fowles v State of New York, 152 Misc 2d 837 [Ct Cl 1991]).

Because the use of ordinary mail is insufficient to acquire jurisdiction and because this Court does not have the authority to cure or overlook defects in the manner of service and filing, this claim must be dismissed.




December 2, 2004
Albany, New York

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


The Court read and considered the following papers:


1. Notice of Motion and supporting Affirmation of Kathleen M. Arnold, Esq., AAG, with annexed copy of the Claim and envelope used to serve the Attorney General and the Answer;

2. Filed papers: Claim, Answer