New York State Court of Claims

New York State Court of Claims

RIVERS v. THE STATE OF NEW YORK, #2005-015-052, Claim No. 110431, Motion Nos. M-70321, CM-70745


Claim seeking damages for excessive confinement dismissed for lack of jurisdiction where claim was served by ordinary mail.

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:
Terrence Rivers, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Saul Aronson, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 26, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for summary judgment (M-70321) determining the State to be liable for alleged excessive confinement is denied. Defendant's cross-motion to dismiss the claim for lack of jurisdiction (CM-70745) is granted. The claim seeks $6,000 in damages for alleged excessive confinement in the special housing unit (SHU) at Greene Correctional Facility for a period of three days subsequent to the claimant being found not guilty of all charges listed in a misbehavior report. On October 31, 2004 claimant was charged with extortion, violent conduct, unauthorized organizational activity and threats at Mt. McGregor Correctional Facility. He was then transferred to Greene Correctional Facility's SHU where he was served with the misbehavior report on November 3, 2004. A hearing on the charges was held on November 8, 2004 and claimant was found not guilty on all charges. Claimant remained in the SHU at Greene until November 11, 2004 when he was returned to Mt. McGregor. Claimant moved for summary judgment on the ground that there is no defense to the claim. Defendant opposed the motion alleging that there are issues of fact requiring a trial.

Included within claimant's motion papers as Exhibit B was an affidavit of service attesting that the claim was "deposited in a mail receptacle designated as U.S. Mail" at the Mt. McGregor Correctional Facility. Since the exhibit appeared to indicate that the claim was served by regular mail rather than personally or by certified mail, return receipt requested, as required by Court of Claims Act § 11 (a) (i) the Court adjourned the motion to allow each party to address the issue of service. This action was deemed necessary since the failure to comply with the manner of service requirements of the Court of Claims Act directly affects the Court's jurisdiction.

Claimant responded by letter dated September 20, 2005 in which he failed to specifically address whether the claim had been properly served.[1] Instead claimant asserted that he served a notice of intention to file a claim by certified mail, return receipt requested, and sought permission to resubmit the claim.

Defendant cross-moved to dismiss the claim for lack of jurisdiction arising from its service by ordinary mail. Attached to the cross-motion as Exhibit A was a photocopy of the envelope in which the claim was served. The envelope bears postage in the amount of $1.29 and otherwise contains no indicia of service by certified mail, return receipt requested.

In Turley v State of New York, (279 AD2d 819, lv to appeal denied 96 NY2d 708, lv to reargue denied 96 NY2d 855) the Appellate Division, Third Department held:
Ordinary mail is not one of the methods of service authorized by Court of Claims Act § 11 (a) and, "[g]enerally, 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; see Hodge v State of New York, 213 AD2d 766). Although a defect in the manner of service is waived if the State fails to assert the defect in its answer or in a preanswer motion to dismiss (see, Court of Claims Act § 11[c]), here the State asserted the defect in its answer. Claimant's contention that the State received actual notice of the claim and therefore, was not prejudiced by his use of ordinary mail is unavailing, for "notice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court" (Feinstein v Bergner, 48 NY2d 234, 241). Accordingly, the claim was properly dismissed (see, Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687).

In the instant case the defendant asserted service of the claim by ordinary mail in its answer. The claim must, therefore, be dismissed. However, as it appears the claimant timely served a notice of intention upon the Attorney General by certified mail, return receipt requested, dismissal of the claim is without prejudice to the service and filing of a new claim in a manner consistent with the requirements of the Court of Claims Act (see Anderson v State of New York, Ct Cl, August 4, 2000 [Claim No. 102404; Motion No. M-61848, UID # 2000-001-043] Read, P.J., unreported[2]; see also Rodriguez v State of New York, 307 AD2d 657).

The defendant's motion to dismiss the claim is granted and claimant's motion for summary judgment is denied.

October 26, 2005
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

Motion No. M-70321
  1. Notice of motion dated June 7, 2005;
  2. Affidavit of Terrence Rivers sworn to June 7, 2005, with exhibits;
  3. Affirmation of Saul Aronson dated June 26, 2005 with exhibits;
  4. "Affirmation" of Terrence Rivers sworn to August 11, 2005;
  5. Response of Terrence Rivers sworn to October 13, 2005 not considered;

Cross-Motion No. CM-70745

  1. Notice of cross-motion dated October 3, 2005;
  2. Affirmation of Saul Aronson dated September 30, 2005 with exhibit;
  3. Letter dated September 20, 2005 from Terrence Rivers.

[1]Claimant admitted regular mail service in an affidavit sworn to on October 13, 2005, nine days after the motion's return date. This submission was untimely filed with the Court on October 17, 2005.
[2]Unreported decisions from the Court of Claims are available via the internet at