New York State Court of Claims

New York State Court of Claims

DURE v. THE STATE OF NEW YORK, #2004-034-504, Claim No. 105723, Motion No. M-67874


Synopsis


Case Information

UID:
2004-034-504
Claimant(s):
PHILIPPE DURE
Claimant short name:
DURE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105723
Motion number(s):
M-67874
Cross-motion number(s):

Judge:
Michael E. Hudson
Claimant's attorney:
PHILIPPE DURE, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 3, 2004
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 receipt requested.

The Court has considered the following papers in connection with this motion:

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 attached exhibit.



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 relief.

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).


February 3, 2004
Buffalo, New York

HON. MICHAEL E. HUDSON
Judge of the Court of Claims