New York State Court of Claims

New York State Court of Claims

JACKSON v. STATE OF NEW YORK, #2005-018-492, Claim No. 111026, Motion No. M-70500


Synopsis


The claim is dismissed for failure to comply with Court of Claims Act § 11.

Case Information

UID:
2005-018-492
Claimant(s):
HAROLD JACKSON
Claimant short name:
JACKSON
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111026
Motion number(s):
M-70500
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
HAROLD JACKSONPro Se
Defendant's attorney:
ELIOT SPITZER
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
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The Defendant brings a pre-answer motion to dismiss the claim[1] for lack of jurisdiction.

Claimant asserts that he complied with the law, in accordance with the CPLR, and he should be awarded damages for his injuries.

Defendant argues that the Court lacks personal and subject matter jurisdiction over the claim because the claimant failed to timely serve a notice of intention or file and serve a claim in accordance with Court of Claims Act §§ 10 and 11. Defendant argues that the claim was served upon the Attorney General on June 20, 2005, by regular mail, not certified mail, return receipt requested as required by Court of Claims Act § 11(a). Defendant has attached a copy of the envelope in which the claim was sent as Exhibit B. The envelope reflects postage of only $.60 and no certified mail label.

Court of Claims Act § 11(a)(i) states in relevant part that "the claim shall be filed with the clerk of the court; and... a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court."

It is well-established that the requirements for service on the attorney general are jurisdictional and must be strictly construed (Byrne v State of New York, 104 AD2d 782, 783, lv denied 64 NY2d 607). Service by regular mail is not service sufficient to commence an action in this Court and the Court cannot ignore the service defect (see Bogel v State of New York, 175 AD2d 493, 494 ["[s]ervice of the claims upon the Attorney-General by ordinary mail was insufficient to acquire jurisdiction over the State" and the claim was therefore properly dismissed]; Diaz v State of New York, 174 Misc 2d 63, 64 ["service by regular mail does not comply with the requirements of the statute and such service is therefore not adequate to acquire jurisdiction over the State." Furthermore, "the court does not have discretion to disregard the defect"]).

Here, it has been established that Claimant served the claim upon the Attorney General by regular mail, which is not a method of service in compliance with Court of Claims Act § 11. Thus, the Court lacks jurisdiction over the Defendant.[2]

Based upon the foregoing, the Defendant's motion is GRANTED and claim is hereby DISMISSED.


November 10, 2005
Syracuse, New York

HON. DIANE L. FITZPATRICK
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

with exhibits attached thereto............................................................2


Reply letter dated October 14, 2005, which was sworn to on October 18,

2005, with exhibit attached thereto...................................................3



[1] Claimant filed another claim (Claim No. 109121) alleging the same facts with the Clerk of the Court on April 1, 2004. That claim has been dismissed for failure to serve the attorney general (Motion No. M-70364).
[2]It also appears that the claim is untimely in that it was not served within 90 days of the date of accrual. The Claimant alleges that the claim accrued on January 16, 2003,and the claim was not served until June 21, 2005. The Defendant asserts that no notice of intention was ever served (see Court of Claims Act § 10[3-a]).