On March 16, 2005, the following papers were read on motion by Defendant for
dismissal of the claim:
Notice of Motion, Affidavit and Exhibits Annexed
Claimant's Opposing Papers: None
Filed Papers: Claim; Answer
Upon the foregoing papers, the motion is granted.
This is Defendant's motion seeking summary judgment dismissing the claim. I
note that the motion papers here were served upon the Claimant at his last known
address in Defendant's records, the Five Points Correctional Facility, from
which Defendant advises that Claimant was released on August 17, 2004.
Defendant also served a copy of the motion papers on Claimant at the Suffolk
County Sheriff's Office located at the Riverhead Correctional Facility, the
location to which Claimant was apparently released. Separately, in conjunction
with the instant motion, on March 3, 2005, the Clerk of the Court of Claims sent
written correspondence to the Claimant at the last known address of which the
Clerk's Office was aware: to wit, the Southport Correctional Facility. That
correspondence was returned to the Clerk as undeliverable, and thus clearly the
Claimant did not comply with 22 NYCRR 206.6(f), requiring notification of
changes in address within ten days thereof. Regardless, I find that good faith
attempts to contact the Claimant were made by the Defendant and the Clerk of the
Court, and I further note that Claimant has not submitted any papers in
opposition to the relief sought.
The underlying claim herein alleges a denial of proper medical treatment
between June 9, 2000 and June 12, 2000, while Claimant was incarcerated at the
Wende Correctional Facility. The claim was "served" upon the Defendant on
August 24, 2000, allegedly by regular mail, and Defendant seeks dismissal of the
claim alleging that Claimant failed to obtain jurisdiction over the Defendant by
utilizing a manner of service that is not authorized by Court of Claims Act
Defendant filed its answer, raising certain jurisdictional infirmities, to wit,
as its fifth and sixth affirmative defenses. Additionally, the seventh
affirmative defense spells out in great particularity the alleged failure to
comply with Court of Claims Act §9, §10 and §11, that service of
the claim is required to be accomplished by personal service or by certified
mail, return receipt requested, and that service of the claim was improperly
accomplished by regular mail, and thus there was no timely claim served upon the
Defendant, depriving the Court of jurisdiction.
I find that the detail and specificity of the aforementioned affirmative
defenses were sufficiently particular to have placed Claimant on notice of the
jurisdictional infirmities relating to timeliness and manner of service (Court
of Claims Act §11[c]).
I find that service of the claim was accomplished by regular mail, in
derogation of Court of Claims Act §11(a)(i), and that such defense was
preserved with particularity in Defendant's answer (Court of Claims Act
§11[c]). I make this finding based upon the undisputed sworn affidavit of
the Assistant Attorney General representing the Defendant in this motion, as
buttressed by the allegations of the seventh affirmative defense. I note that
Exhibit A to the moving papers contained the claim, and, inter alia,
Claimant's affidavit of service that reflects mailing by the post office, with
no particularization of the use of certified mail or return receipt requested.
I do note, however, that the photocopy of the envelope, which contains no
markings of certified mail, does not show the amount of postage paid.
Nonetheless, based upon all the indicia noted above, the sworn assertions of
counsel and the absence of any denial, I find that service was accomplished by
regular mail, and not by certified mail, return receipt requested.
It is black letter law that service of claims by ordinary mail is insufficient
to acquire jurisdiction over the State (Charbonneau v State of New York,
178 AD2d 815, 816, affd sub nom. Dreger v New York State
Thruway Auth., 81 NY2d 721; Turley v State of New York, 279 AD2d 819,
rearg denied 96 NY2d 855).
The failure to comply with the time and manner of service requirements
contained in Section 10 and 11 of the Court of Claims Act is a fatal
jurisdictional defect and deprives this Court of the power to hear the claim
(Dreger v New York State Thruway Auth., 81 NY2d at 724; Bogel v State
of New York 175 AD2d 493).
Accordingly, Defendant's motion is granted and the claim is dismissed.