Filed papers: Claim, filed August 13,
On August 13, 2004, a claim was filed with the Clerk of the Court naming the
Visiting Nurse Service of New York, The State of New York, and The Board for
as defendants and assigned
Claim No. 109724. The filed Claim appears to seek damages sustained by Claimant
as a target of the "SDM Project", which Claimant avers is a massive research
project by the government involving electromagnetic devices.
A review of the file revealed that Defendants
had never filed an answer to the Claim and, consequently, the Court issued an
Order to Show Cause directing the parties to provide statements relating to
service of this Claim.
The Defendant responded, and in its separate application asserted that on
October 12, 2004 the Defendant State of New York was served with a "50 paragraph
claim... via United States Postal Service Priority Mail, return receipt
requested" which it is alleged is not "U.S. certified mail." (Cagino
Letter; Cagino Affirmation ¶ 3).
In apparent response, Claimant's "Emergency Affidavit" included, among many
other things, photocopies of "return receipt for merchandise" cards for each of
the named Defendants. The box for certified mail on each of the cards is not
Court of Claims Act 11 (a) provides, in relevant part, that a copy of the claim
at issue "shall be served personally or by certified mail, return receipt
requested, upon the attorney general." The requirements set forth in Court of
Claims Act 11 are jurisdictional in nature and, as such, must be strictly
construed (see Finnerty v New York State Thruway Auth., 75 NY2d
721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d
Section 11 (a) (i) of the Court of Claims Act provides that a claim shall be
served upon the Attorney General "either personally or by certified mail,
return receipt requested." Alternative methods of service such as by Federal
Express delivery or United States Postal Service express mail are not permitted
(see Negron v State of New York, 257 AD2d 652; Martinez v State
of New York, 282 AD2d 580; Hodge v State of New York, 213 AD2d 766).
Service of a claim by priority mail with delivery confirmation is not sufficient
to commence an action in this court and the court is without discretion to
disregard a defect in service (Howard v State of New York, Ct Cl,
Fitzpatrick, J., Claim No. 106303, Motion No. M-65666, UID # 2002-018-193,
[November 22, 2002] unreported). Failure to comply with the service
requirements of Court of Claims Act § 11 (a) (i) is a fatal jurisdictional
defect requiring dismissal of the claim (Rodriguez v State of New York,
307 AD2d 657; Thompson v State of New York, 286 AD2d 831; Suarez v
State of New York, 193 AD2d 1037).
The Court finds that Claimant failed to comply with the service requirements of
Court of Claims Act §11(a) in that she failed to serve a copy of the filed
claim on the Attorney General by one of the statutorily prescribed
Accordingly, Claim No. 109724 is hereby dismissed in its entirety.
While the Order to Show Cause was sub judice, Defendant State of New York made
a separate motion filed on December 3, 2004 (M-69435) seeking dismissal of the
Claim for, inter alia, failure of Claimant to properly serve the Claim,
which Claimant opposed. Claimant thereafter made a motion filed on December 20,
2004 (M-69491) for a default judgment.
By virtue of the foregoing, motions M-69435 and M-69491 are denied as