New York State Court of Claims

New York State Court of Claims

FLEMMING v. THE STATE OF NEW YORK, #2005-009-043, Claim No. 109259, Motion Nos. M-69913, M-70044, CM-69945


Synopsis


Defendant's motion to dismiss the claim for improper service was granted, with the Court finding that defendant had properly preserved its defense, with particularity, in its answer.

Case Information

UID:
2005-009-043
Claimant(s):
WOODROW FLEMMING The Court, sua sponte, has amended the caption to set forth the only proper parties before this Court.
Claimant short name:
FLEMMING
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, has amended the caption to set forth the only proper parties before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109259
Motion number(s):
M-69913, M-70044
Cross-motion number(s):
CM-69945
Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
WOODROW FLEMMING, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
August 29, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought a motion (Motion No. M-69913) seeking an order dismissing the claim. Claimant has responded with a cross-motion (Cross-Motion No. CM-69945) not only in opposition to defendant's motion, but also seeking summary judgment and an amendment of his claim. Claimant has also filed a separate motion (Motion No. M-70044) in which he seeks an order compelling the defendant to comply with his discovery demands. For purposes of judicial economy, all of these motions will be determined herein.

The following papers were therefore considered by the Court in connection with these motions:
Notice of Motion to Dismiss Claim, Affirmation, with Exhibits (M-69913) 1,2


Notice of Cross-Motion, Affirmation, with Attachments (CM-69945) 3,4

"Affidavit of Service", with Attachments (CM-69945) 5


Notice of Motion, Affirmation (M-70044) 6,7


"Notice to Court", Affirmation, from claimant 8,9


"Affirmation/Statement", with Attachments, from claimant 10

In its motion to dismiss (M-69913), defendant seeks an order dismissing the claim for lack of jurisdiction due to improper service of claimant's notice of intention to file a claim and his claim. Pursuant to Court of Claims Act § 11(a), both a notice of intention to file a claim and a claim must be served upon the Attorney General either personally or by certified mail, return receipt requested (Hodge v State of New York, 213 AD2d 766). Such provisions are jurisdictional prerequisites to the institution and maintenance of a claim, and as such must be strictly construed (Greenspan Bros. v State of New York, 122 AD2d 249). Service of a claim by ordinary, first class mail is not one of the methods of service authorized by Court of Claims Act § 11(a) (Turley v State of New York, 279 AD2d 819), and service of a claim which is not made in accordance with the provisions of § 11 is insufficient to confer jurisdiction over the State (Hodge v State of New York, supra; Philippe v State of New York, 248 AD2d 827).

In his supporting affirmation to the State's motion to dismiss (see Item 2), defendant's attorney affirms that a notice of intention to file a claim was served upon the Attorney General on or about April 14, 2004, but that such notice of intention was served by regular, first class mail. A copy of the envelope in which this notice of intention was mailed has been submitted with these motion papers (see Exhibit B to Items 1,2), on which postage in the amount of $.60 is indicated. Clearly, the amount of such postage is less than the amount required for certified mail, return receipt requested. Furthermore, there is no additional postage or any other markings on the envelope to indicate that the notice of intention was served by certified mail, return receipt requested.

Additionally, defendant's attorney affirms that the claim was then served on or about April 29, 2004, also by ordinary, first class mail. Again, defendant's attorney has attached a copy of the envelope in which the claim was purportedly served (see Exhibit D to Items 1,2) which bears postage of $.37. This amount is obviously insufficient to establish service by certified mail, return receipt requested, and there are no markings on the envelope to indicate that the claim was served in this manner.

The contentions by the defendant's attorney that both the notice of intention and the claim were served by regular mail have not been disputed by the claimant in any of the numerous papers and documents submitted by him in connection with the various motions before the Court. Claimant has not offered any evidence whatsoever to establish that either his notice of intention or his claim were properly served in accordance with the provisions of § 11(a).

Rather, claimant strenuously argues throughout his submissions that the defendant has waived any objection to improper service by its participation in the discovery process, specifically referring to defendant's service of its discovery demands, which were apparently served upon claimant with defendant's answer.

Pursuant to Court of Claims Act § 11(c), any objection or defense based upon a failure to comply with the service requirements set forth in § 11(a) is waived unless the objection or defense is raised, with particularity, either in a motion to dismiss made prior to service of the responsive pleading, or in the responsive pleading itself.

In this particular matter, the Court has examined the answer served by the defendant and finds that an objection as to service of the claim was raised by the defendant as its second affirmative defense (see Exhibit E to Items 1,2, par. 7). In this affirmative defense, defendant states "[t]hat the Court lacks personal jurisdiction over the defendant, the State of New York, and subject matter jurisdiction of the claim as the claim was served by regular mail and not by certified mail, return receipt requested or personal service as required by Court of Claims Act § 11." The Court finds that in this defense, the defendant has raised the defense of improper service with sufficient particularity to satisfy the requirement of § 11(c). Accordingly, defendant has not waived any objection as to improper service and its motion to dismiss is properly before the Court.

Therefore, since defendant has not waived its right to object to improper service, and furthermore has established that service of the claim was not made in accordance with the requirements of Court of Claims Act § 11(a), the Court must find that jurisdiction is lacking and the claim must be dismissed. As a result, the relief sought by claimant in his cross-motion (CM-69945) and in his separate motion (M-70044) has been rendered moot.

Therefore, it is

ORDERED, that Motion No. M-69913 is hereby GRANTED; and it is further

ORDERED, that both Cross-Motion No. CM-69945 and Motion No. M-70044 are hereby DENIED in their entirety; and it is further

ORDERED, that Claim No. 109259 is hereby DISMISSED.


August 29, 2005
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims