New York State Court of Claims

New York State Court of Claims

MORENE v. THE STATE OF NEW YORK, #2004-034-568, Claim No. 106928, Motion No. M-69038


Synopsis


Defendant's motion to dismiss for failure to properly serve the Attorney General is granted. Improper service was pleaded as an affirmative defense, and therefore has not been waived.

Case Information

UID:
2004-034-568
Claimant(s):
ANTHONY MORENE
Claimant short name:
MORENE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106928
Motion number(s):
M-69038
Cross-motion number(s):

Judge:
MICHAEL E. HUDSON
Claimant's attorney:
ANTHONY MORENE, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 22, 2004
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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

1. Claim, verified November 11, 2002, filed November 14, 2002;

2. Answer, verified December 10, 2002, filed December 12, 2002;

3. Defendant's Notice of Motion, dated September 1, 2004, filed September 3, 2004;

4. Affirmation of Thomas G. Ramsay, dated September 1, 2004, with attached exhibit;

5. "Claimant Responds to Defendants Motion to Dismiss," sworn to September 7, 2004, unfiled;

6. Reply Affirmation of Thomas G. Ramsay, dated September 14, 2004, filed September 16, 2004.

Claimant, an inmate formerly confined at Attica Correctional Facility, filed a Claim alleging inadequate medical treatment at that facility from July 24, 2002 through September 18, 2002. Defendant has now moved to dismiss the Claim pursuant to CPLR 3211 (a) (2) and (a) (8) and Court of Claims Act § 11 (a) for failure to serve the Claim upon the Attorney General either personally, or by certified mail, return receipt requested, as required under Court of Claims Act §11 (a) (i). Defendant contends that service was effected by ordinary mail, and has attached a copy of the envelope used to serve the Claim in support of its assertion. Claimant has not disputed such service, but urges that a defect in the manner of service is not jurisdictional. However, the argument that service by ordinary mail does not deprive the Court of personal jurisdiction is misplaced where, as here, the objection was raised in the answer, as an affirmative defense (Govan v State of New York, 301 AD2d 757 [2003], lv denied 99 NY2d 510 [2003]; Turley v State of New York, 279 AD2d 819 [2001], lv denied 96 NY2d 708 [2001]). By comparison, in Thomas v State of New York, 144 AD2d 882 (1988), relied upon by Claimant, the State did not raise the manner of service as an affirmative defense, and was thus deemed to have waived its obligation. Moreover, some recent authority supports that a defect in the manner of service deprives the Court of subject matter jurisdiction, that could not be waived even if Defendant had failed to assert that defect as an affirmative defense (see Rodriguez v State of New York, 307 AD2d 657 [2003]). Therefore, the Court is compelled to grant dismissal of the Claim.

Based upon the above, it is

ORDERED, that Defendant's motion is granted, and the Claim is dismissed. The Clerk of the Court is hereby directed to close the file.

September 22, 2004
Buffalo, New York

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