New York State Court of Claims

New York State Court of Claims

HUBERT v. THE STATE OF NEW YORK, #2005-028-559, Claim No. 107239, Motion No. M-70522


Synopsis


Defendant moved to dismiss for failure to comply with Court of Claims Act §11(a).

Claim was improperly served by regular mail upon the Attorney General. Claim dismissed.

Case Information

UID:
2005-028-559
Claimant(s):
ROBERTO HUBERT
Claimant short name:
HUBERT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107239
Motion number(s):
M-70522
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
ROBERTO HUBERT, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: G. Lawrence Dillon, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 5, 2005
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on the Defendant's motion for dismissal of this Claim.

1. Notice of Motion, and Supporting Affirmation of Assistant Attorney General G. Lawrence Dillon filed July 28, 2005 with annexed Exhibits A - C (Dillon Affirmation).

Opposition Papers: NONE.

Filed papers: Claim, filed January 23, 2003 and Verified Answer, filed February 13, 2003.


Defendant has moved to dismiss the Claim based upon, inter alia, Claimant's failure to serve the Claim by certified mail, return receipt requested as required by Court of Claims Act § 11(a) (Dillon Affirmation ¶ 5). Claimant has failed to oppose the motion.

Court of Claims Act 11 (a) (i) 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; see also Lichtenstein v State of New York, 93 NY2d 911, 912-913 [applying same principles to requirements of Court of Claims Act § 10]). The Court is not free to temper application of a rule of law, whether done in the exercise of discretion, equity or because there is no prejudice and a harsh result will be avoided (see Martin v State of New York, 185 Misc 2d 799, 804-805, collecting cases).

As an initial matter, the Court finds that the State adequately pleaded the service defense with sufficient particularity in its Answer (Dillon Affirmation Exhibit C) to meet the requirement of Court of Claims Act § 11(c) (see Sinacore v State of New York, 176 Misc 2d 1, 9).

The Defendant has provided a photocopy of the envelope (see Exhibit B) in which the Claim was served to establish same was not served by certified mail, return receipt requested but rather improperly via first class mail (see Dreger v New York State Thruway Authority, 81 NY2d 721; Negron v State of New York, 257 AD2d 652; Philippe v State of New York, 248 AD2d 827). Accordingly, Claimant has failed to meet the literal requirements of Court of Claims Act § 11, and has therefore not properly commenced his action[1].

The Court, having found that Claimant did not serve the Claim by certified mail, return receipt requested, hereby grants the Defendant's motion to dismiss the Claim. Accordingly, Claim No. 107239 shall be and hereby is dismissed.


October 5, 2005
Albany, New York

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




[1] The Court does not reach Defendant's alternative theories advanced for dismissal.