New York State Court of Claims

New York State Court of Claims

FERNANDEZ v. THE STATE OF NEW YORK, #2005-013-013, Claim No. 102928, Motion No. M-69810


Defendant's motion to dismiss for service of the claim by regular mail is granted

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 14, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


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 §11(a)(i).

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.

April 14, 2005
Rochester, New York

Judge of the Court of Claims