New York State Court of Claims

New York State Court of Claims

CASTILLO v. THE VISITING NURSE SERVICE OF NEW YORK


THE BOARD FOR HIGHER LEARNING


THE STATE OF NEW YORK, #2005-028-518, Claim No. 109724, Motion Nos. M-69240, M-69435, M-69491


Synopsis


Claimant failed to establish service in accordance with Court of Claims Act as Claim was served by Priority Mail. Claim dismissed.

Case Information

UID:
2005-028-518
Claimant(s):
ELLEN-ELLA S. CASTILLO,BEMBAY CORPORATION
Claimant short name:
CASTILLO
Footnote (claimant name) :

Defendant(s):
THE VISITING NURSE SERVICE OF NEW YORK
THE BOARD FOR HIGHER LEARNINGTHE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109724
Motion number(s):
M-69240, M-69435, M-69491
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
ELLEN-ELLA S. CASTILLO, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Paul F. Cagino, Esq.
Assistant Attorney General

For Visiting Nurse Service of New York:
COLLAZO CARLING & MISH LLPBY: Tonianne Florentino, Esq.
Third-party defendant's attorney:

Signature date:
February 28, 2005
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on the pending applications and the Court's Order to Show Cause, for clarification from the parties regarding service of this claim:


M-69240

1. Order to Show Cause, filed on October 15, 2004;

2. Letter from Assistant Attorney General Paul F. Cagino received November 8, 2004

3. Claimant's "Emergency Affidavit" filed November 3, 2004[1]


M-69435

1. Notice of Motion and Supporting Affirmation of Assistant Attorney General

Paul F. Cagino filed December 3, 2004 with annexed Exhibits A-B

2. "Verified Answer and Affirmation" of Ellen-Ella Saulon Castillo filed

December 10, 2004

M-69491

1. Notice of Motion and Supporting Affidavit of Ellen-Ella Saulon Castillo filed December 20, 2004

Filed papers: Claim, filed August 13, 2004[2]


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 Higher Learning[3] 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[4] 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 checked.

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 687).

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 methods.

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 moot.


February 28, 2005
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] The Court also received a second letter on November 8, 2004 from the Assistant Attorney General objecting to Claimant's purported Order to Show Cause as referenced in her "emergency affidavit". The Court's Order to Show Cause filed October 15, 2004 is the only such application before the Court.
[2] Claimant's affidavits of service, filed subsequent to the Court's Order to Show Cause, were dated October 9, 2004 and contained no identifying information as to the party served or the address at which service was made. As such, there is no presumption of service upon the Defendant (see Engel by Engel v Lichterman, 62 NY2d 943; Lorusso v State of New York, Ct Cl, Sise, J., Claim No. 105112, UID #2002-028-010 [March 1, 2002]).
[3] The Court has no knowledge as to what entity the Claimant intends by this reference.
[4] The Court of Claims is a court of limited jurisdiction and does not have jurisdiction over the Visiting Nurse Service of New York (see Court of Claims Act § 9), the City of New York or the Federal Government - two entities named as Defendants in subsequent submissions, but not in the original claim. The Court also received a letter from counsel for the Visiting Nurse Service of New York noting the Court's limited jurisdiction.