New York State Court of Claims

New York State Court of Claims

JACKSON v. STATE OF NEW YORK, #2005-018-491, Claim No. 109121, Motion No. M-70364


Claim is dismissed pursuant to §§ 10 and 11 of the Court of Claims Act.

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: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 10, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant brings this motion to dismiss the claim for lack of personal and subject matter

jurisdiction. Defendant asserts that it was never served with a copy of the claim. In support of its position, it submits the affirmation of Assistant Attorney General Joel L. Marmelstein and the affidavit of Janet Barringer, Senior Clerk in the Albany Office of the Attorney General. Ms. Barringer's duties require that she be familiar with the record keeping system in the Litigation Bureau/Claims Practice Group of the Attorney General's office for notice of intentions and claims. The only documentation of this claim received by the Attorney General's office, according to Ms. Barringer, was a letter from the Court of Claims dated April 12, 2004, acknowledging receipt of the claim of "Harold Jackson 02-A-6683 against State of New York," which was filed on April 1, 2004. The letter was given reference number OAG

#04-006037-O. There is no record that any claim was ever received by the Attorney General's office.

The claim, which Claimant alleges accrued on January 16, 2003, seeks damages for injuries suffered when he fell getting out of his top bunk bed at Ogdensburg Correctional Facility. There was an affidavit of service filed with the Clerk of the Court, as required by the Rules of the Court of Claims [22 NYCRR] §206.5(a), however, the affidavit states that he placed something which is not identified in the institutional mailbox at Oneida Correctional Facility on March 19, 2004. It also does not specify to whom the mail was being sent. The affidavit is sworn to on March 22, 2004.

In order to properly commence an action in the Court of Claims, the claim must be filed with the Clerk of the Court and served upon the Attorney General (Court of Claims Act § 10). Service upon the Attorney General, according to Court of Claims Act § 11(a), must be by personal service or by certified mail return receipt requested. These requirements in Court of Claims Act §§ 10 and 11 are jurisdictional prerequisites to commencing an action in this Court (Byrne v State of New York, 104 AD2d 782, 783, lv denied 64 NY2d 607). The failure to serve the Attorney General results in a lack of jurisdiction, which precludes this Court from hearing the claim (Finnerty v New York State Thruway Authority, 75 NY2d 721, 722; Nish v Town of Poestenkill, 179 AD2d 929, appeal dismissed 79 NY2d 1040).

Claimant has not come forward with sufficient proof of service. The affidavit, indicating an unspecified item was placed in the correctional facility mailbox with no indication to whom it was being sent, is inadequate to establish proper service on the Attorney General. Defendant has provided a copy of receipts for two certified mailings which Claimant allegedly sent and was received by the Attorney General on October 26, 2004, purporting to establish proper service (see Defendant's motion, Exhibit 3). One receipt shows something was mailed to the Attorney General on July 6, 200 (the last number on the receipt is obscured) for $2.90, and the second receipt evidences something was mailed to Eliot Spitzer, Attorney General on April 1, 2004 for $2.67. There is no indication what was sent in either case; however, even if we assume one of these receipts evidences service of this claim, service is still improper in that no return receipt requested was sought and no return receipt card evidencing actual receipt was provided. Certified mail without the return receipt is still not proper service pursuant to Court of Claims Act § 11(a)(i), (see Crum v State of New York, Ct Cl, Fitzpatrick, J. signed March 25, 2004, Claim No. 105233, Motion No. M-67795 [UID# 2004-018-293]).

Defendant's motion must be GRANTED and the claim DISMISSED.

November 10, 2005
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Notice of Motion.................................................................................1

Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney

General, in support, with exhibits attached thereto.................2

Unsworn reply letter dated July 20, 2005, in opposition.....................3