New York State Court of Claims

New York State Court of Claims

HARRISON v. THE STATE OF NEW YORK, #2005-009-055, Claim No. 110155, Motion No. M-70453


Synopsis


Defendant's motion to dismiss the claim based upon improper service of both the notice of intention and the claim was granted.

Case Information

UID:
2005-009-055
Claimant(s):
JOHN HARRISON
Claimant short name:
HARRISON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110155
Motion number(s):
M-70453
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
JOHN HARRISON, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
November 18, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has brought this motion seeking an order dismissing the claim for lack of jurisdiction due to improper and untimely service of claimant's notice of intention to file a claim and his claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2


Affidavit in Opposition 3

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 (see Item 2), defendant's attorney affirms that a notice of intention to file a claim was received by the Attorney General on August 27, 2004. However, defendant's attorney also affirms that such notice of intention was served by regular, first class mail, and not by certified mail, return receipt requested. Defendant's attorney has submitted a copy of this envelope with his motion papers (see Exhibit E to Items 1,2), on which postage in the amount of $.60 is indicated. Clearly, this amount is insufficient postage for certified mail, return receipt requested service. Furthermore, there is no additional postage nor 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 served on the Attorney General on December 8, 2004, and that this claim was also served by ordinary, first class mail. Defendant's attorney has attached a copy of this envelope as well (see Exhibit C to Items 1,2) which bears postage in the amount of $.60. This amount is obviously insufficient to establish service of the claim by certified mail, return receipt requested.

The contentions by defendant's attorney that both the notice of intention and the claim were served by regular mail have not been disputed by claimant in his affidavit in opposition to this motion. Rather, claimant has requested that this Court grant him latitude in complying with the statutory requirements since he is a pro se litigant. While this Court is willing to permit some liberty in the presentation of pro se claims, the Court cannot ignore jurisdictional requirements, which must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721; Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607).

Accordingly, this claim must be dismissed based upon the improper service of both the notice of intention and the claim.

Accordingly, it is

ORDERED, that Motion No. M-70453 is hereby GRANTED; and it is further

ORDERED, that Claim No. 110155 is hereby DISMISSED.


November 18, 2005
Syracuse, New York

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