New York State Court of Claims

New York State Court of Claims

FULTON v. THE STATE OF NEW YORK, #2005-015-047, Claim No. 111012, Motion Nos. M-70488, M-70637


Synopsis


Court dismissed inmate claim for lack of jurisdiction where claim was served by ordinary mail.

Case Information

UID:
2005-015-047
Claimant(s):
ALVIN FULTON, JR. The caption is amended sua sponte to reflect the only properly named defendant.
Claimant short name:
FULTON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption is amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111012
Motion number(s):
M-70488, M-70637
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Alvin Fulton, Jr., Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Arnold, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 14, 2005
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant's pre-answer motion to the dismiss the claim for lack of jurisdiction (M-70488) is granted. Claimant's motion for an order disqualifying Correction Officer M. J. Girard from legal representation and indemnification is denied as academic. The claim alleges that on December 23, 2003 claimant was approached by C.O. Girard and forced to work as a food server in the mess hall at Great Meadow Correctional Facility on his day off and without the footwear required for such work. When the claimant resisted C. O. Girard's directions he was issued a misbehavior report for disobeying a direct order. Claimant was found guilty of the charge but that determination was later reversed on administrative appeal by decision dated March 2, 2005. It is alleged that the claim accrued on the date of the administrative reversal.

In support of the motion defendant submitted the affirmation of Assistant Attorney General Kathleen Arnold dated July 22, 2005 in which she alleges that claimant served the claim by regular mail on June 15, 2005. The allegations of regular mail service are supported by a photocopy of the envelope in which the claim was served (see Exhibit A).

Claimant opposed the motion on the ground that the admission of service set forth in the Assistant Attorney General's affirmation demonstrates that the defendant was adequately served.

Section 11 (a) (i) of the Court of Claims Act provides:

§ 11. Filing, service and contents of claim or notice of intention
a. (i) Eff. until Sept. 1, 2005 pursuant to L.2002, c. 110, § 3. See, also, par. (i), below.] The claim shall be filed with the clerk of the court; and, except in the case of a claim for the appropriation by the state of lands, a copy shall be served upon the attorney general within the times hereinbefore provided for filing with the clerk of the court either personally or by certified mail, return receipt requested, or, where authorized by rule of the chief administrator of the courts and upon consent of the attorney general, by facsimile transmission or electronic means, as defined in subdivision (f) of rule twenty-one hundred three of the civil practice law and rules, in such manner as may be provided by rule of court. Any notice of intention shall be similarly served upon the attorney general within the times hereinbefore provided for service upon the attorney general. Service by certified mail, return receipt requested, upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general. Personal service upon the attorney general shall be made in the same manner as described in section three hundred seven of the civil practice law and rules.
"Ordinary 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 "the use of ordinary mail to serve the claim upon the Attorney-General is insufficient to acquire jurisdiction over the State" (Philippe v State of New York, 248 AD2d 827). The defendant has established that service of the claim was not accomplished in accordance with the requirements of Court of Claims Act § 11 (a). As a result, the Court lacks jurisdiction and the claim must be dismissed (Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687) rendering it unnecessary to address the other grounds for dismissal set forth in defendant's motion papers. Claimant's motion (M-70637) is denied as academic.

The claim is dismissed.



October 14, 2005
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:

Motion No, M-70488
  1. Notice of motion dated July 22, 2005;
  2. Affirmation of Kathleen M. Arnold dated July 22, 2005, with exhibits.
  3. "Unsworn" Affidavit of Alvin Fulton, Jr. dated July 26, 2005 with exhibits;
  4. Letter dated August 17, 2005 from Kathleen M. Arnold;
  5. Sur reply captioned "Notice of Response" (submitted but not considered).

Motion No. M-70637

  1. Notice of motion dated August 25, 2005;
  2. Affidavit of Alvin Fulton, Jr. sworn to August 25, 2005;
  3. Letter dated August 31, 2005 from Kathleen M. Arnold.