Defendant has moved to dismiss this action by reason of Claimant's failure to
serve a copy of his Claim upon the Attorney General by certified mail, return
The Court has considered the following papers in connection with this
1. Claim, verified February 7, 2002, filed March 11, 2002;
2. Answer, verified March 6, 2002, filed March 8, 2002;
3. Notice of Motion, dated January 8, 2004, filed January 12, 2004;
4. Affirmation of James L. Gelormini, Esq., dated January 8, 2004, with
On consideration the Court will grant Defendant's motion, noting that Claimant
has failed to file and serve any papers in opposition to the requested
Claimant has sought to recover damages for alleged negligence, discriminatory
work reassignments and unfounded disciplinary filings by employees at Groveland
Correctional Facility, where he formerly had been incarcerated, during December
2001. Claimant filed his Claim on March 11, 2002. He does not dispute that he
served the Attorney General by ordinary mail, postmarked February 8, 2002.
Defendant subsequently filed and served its Answer, challenging the manner of
service in its Third Affirmative Defense.
Defendant has now moved for summary judgment dismissing the Claim. The Court
will grant Defendant's request for relief, although under CPLR 3211 (a) (2) and
(8), rather than CPLR 3212.
Court of Claims Act § 11 (a) (i) requires that a party commencing an
action against the State serve a copy of his Claim upon the Attorney General
"either personally or by certified mail, return receipt requested." Service
upon the Attorney General by ordinary mail has been deemed a defect that negates
subject matter jurisdiction, compelling dismissal (see Rodriguez v State of
New York, 307 AD2d 657). Authority exists that improper service would only
impact on personal jurisdiction rather than subject matter jurisdiction (see
Govan v State of New York, 301 AD2d 757, 758, lv denied 99 NY2d 510),
and thus be waivable. However, even if deemed a matter of personal
jurisdiction, dismissal of the Claim in this instance would nevertheless be
compelled, since Defendant promptly raised that defense as an affirmative
defense in its Answer, and thus did not waive the service requirements of
section 11 (a) (i).
The Claim is dismissed pursuant to CPLR 3211 (a) (2) and (8).