Notice of Motion, Affirmation, with Exhibits 1,2
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 acknowledges
that claimant properly served a notice of intention to file a claim by certified
mail, return receipt requested. Defendant's attorney contends, however, that
claimant then served his claim by regular, first class mail, and that such
service is jurisdictionally defective.
Defendant has attached a copy of the envelope in which the claim was mailed
(see Exhibit D to Items 1,2), on which postage in the amount of $.37 is
indicated. This amount of postage is less than the amount required for
certified mail, return receipt requested service. Additionally, there are no
other markings on the envelope to indicate that the claim was served by
certified mail, return receipt requested, as required by statute.
Claimant has not disputed the contentions raised by defendant as to the manner
of the service of the claim. In fact, claimant has not responded to this
motion, nor has he contacted the Court in any manner regarding this motion.
Based on the submissions, the Court finds that defendant has established that
claimant served his claim upon the Attorney General by regular, first class
mail, which is not a method of service authorized by Court of Claims Act §
11. Accordingly, this Court lacks jurisdiction and the claim must be dismissed.
Based on the foregoing, therefore, it is
ORDERED, that Motion No. M-70588 is hereby GRANTED; and it is further
ORDERED, that Claim No. 108934 is hereby DISMISSED.