New York State Court of Claims

New York State Court of Claims

BAILEY v. THE STATE OF NEW YORK, #2005-036-104, Claim No. 106695, Motion No. M-70417


Claim is dismissed upon Claimant's failure to prove proper service by means of CMRRR. Defense counsel's argument that, pursuant to CPLR 2103(a), a party cannot effect service, even when the method used is CMRRR, is discussed.

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):

Melvin L. Schweitzer
Claimant's attorney:
Michael Bailey, pro se
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: J. Gardner Ryan
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 10, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)


At trial of this action, Defendant moved to dismiss the claim on the grounds that no claim had been served on the Office of the Attorney General and that, even if the claim had been served, service was improper because the affidavit of service
was executed by Claimant and stated that Claimant himself, a party to the action, had carried out the service by mail, in violation of CPLR 2103 (a). The motion was initially granted but, subsequently, that decision was vacated, so that both Claimant and Defendant could make further submissions.
By an Order to Show Cause filed by the Court on July 1, 2005, the parties were directed to address the issue of whether
the claim had been properly served. They were asked to do the following:
[S]hall submit to the Court, in writing, a statement relating to service of this claim, making reference to and including copies of any relevant documentary evidence. Claimant should submit a copy of the certified mail, return receipt evidencing proper service by this alternative to personal service. If Defendant wishes to assert that the claim was not served on the Attorney General, that statement should come from someone with personal knowledge of the contents of files and records of the Department of Law.

In response to the Order to Show Cause, Defendant submitted the affidavit of Catherine Naveed, a clerk of the Claims Bureau of the New York City Office of the Attorney General, who is familiar with the record keeping system of that bureau. She states that the only document on file with the Attorney General relating to this claim is a letter from the Court of Claims, dated October 22, 2002, to which was attached a copy of the order of former Presiding Judge Susan Phillips Read concerning the filing fee. According to Ms. Naveed, she found no record of a claim, and she received no affirmative response when she sent an inquiry to all Assistant Attorneys General in the Albany, Dutchess, Westchester, Suffolk and New York City offices (Naveed affidavit, ¶ 5). Claimant has made no submission in response to the Order to Show Cause.
The Court concludes that Claimant
failed to serve a copy of the claim on Defendant. Inasmuch as the service requirements of section 11 of the Court of Claims Act are jurisdictional in nature and a party's failure to comply with those requirements deprives the Court of jurisdiction to hear the claim (Dreger v. New York State Thruway Auth., 81 N.Y.2d 721, 724 (1992); Bogel v. State of New York, 175 A.D.2d 493 (3d Dept 1991)), the Claim must be dismissed for that reason.
* * *
In connection with the instant motion, counsel for Defendant has raised another issue that, although not necessary for resolution of this case, deserves consideration because it presents a fundamental question regarding a procedure used with great frequency by litigants in this
Court: service of the claim (or notice of intention) by certified mail, return receipt requested (CMRRR), as authorized by section 11(a)(i) of the Court of Claims Act. This method of service is less expensive and easier to effect than the "personal service" alternative and, as such, it often is used by pro se litigants, particularly those confined to a prison.
The issue raised by defense counsel relates to the interplay between the CMRRR method of service and the restriction of CPLR 2103 (a) which provides that "[e]xcept where otherwise prescribed by law or order of court, papers may be served by any person
not a party of the age of eighteen years or over" (emphasis supplied). In his affidavit of service pertaining to the claim here, Claimant stated that he personally sent the claim to the Attorney General by means of CMRRR. Although Claimant ultimately was unable to prove he actually had done so when proof was requested by Order of this Court, defense counsel has argued that even if Claimant had been able to prove the claim had been sent by CMRRR, that service would have been defective because of the CPLR 2103 (a) restriction.[1]
In the 1st and 3rd Departments, however, service of an initiating document by a party has been considered "a mere irregularity which does not vitiate service" (Schodack Concerned Citizens v. Town Bd of Town of Schodack, 148 A.D.2d 130 [3d Dept 1989], lv denied 75 N.Y.2d 701 [1989] [petition to invalidate a zoning change]; see also, American Home Assur. Co. v. Morris Indus. Builders, Inc., 176 A.D.2d 541 [1st Dept 1991], lv dismissed 79 N.Y.2d 851 [1992] [summons and complaint] ["Appellate Courts in this State, including this Court, have consistently held that a party's service of legal papers is a mere irregularity and not a jurisdictional defect"]; Stuart v. Board of Directors of Police Benev. Ass'n of New York State Police, Inc., 86 A.D.2d 721 [3d Dept 1982], appeal dismissed 56 N.Y.2d 807 [1982] [complaint]; Matter of Sullivan v. Albany County Bd. of Elections, 77 A.D.2d 959 [3d Dept 1980] [designating petition]; Kandel v. State Division of Human Rights, 70 A.D.2d 817 [1st Dept 1979] [complaint]); Wein v. Thomas, 78 A.D.2d 611 [1st Dept 1980], aff'd 51 NY2d 862 [1980] [order to show cause and petition].

The language of Court of Claims Act § 11 (a) (i), which provides that (except in appropriation claims) a copy of the claim or a notice of intention "shall be served personally or by certified mail, return receipt requested, upon the attorney general," does not expressly provide that CMRRR service can be carried out by a party.[2] There is some question as to whether service pursuant to CPLR 312-a is available in Court of Claims actions, since section 11(a) of the Court of Claims Act provides that personal service on the Attorney General must be carried out in the manner described in CPLR 307 but contains no reference to CPLR 312-a (Green v. State of New York, UID #2005-030-517, Claim No. 109298, Motion No. M- 69565 [Ct Cl 2005] Scuccimarra, J.).
The question, then, is whether the restriction of CPLR 2103 (a) applies to CMRRR. As a general proposition, practice in this Court is governed by the CPLR unless there are inconsistent provisions in the Court of Claims Act itself or in the rules of the Court (Court of Claims Act § 9 [9]). The CPLR provides no guidance regarding who may carry out service by CMRRR.
The only provision in the CPLR that authorizes an action or proceeding to be commenced by CMRRR service is CPLR 307, "Personal Service Upon the State."[3]
This statute, like Court of Claims Act § 11(a), contains no mention of who may, or who may not, carry out CMRRR service. Research discloses no case in which the interplay of CPLR 307(2) and CPLR 2103(a) has been considered, and the Governor's bill jacket for the 1992 amendment that first provided for the alternative of CMRRR service on a State officer or agency in (L 1992, c 44 § 1) contains no discussion of who would be permitted to carry out such service.
The Legislative history of the provision that first amended section 11 to permit CMRRR service provides little guidance. Use of CMRRR service in this Court was first authorized in 1984 (L 1984, c 427, § 1). Prior to that time, the statute called for a copy of a claim or notice of intention to be personally served but further provided: "However, the claimant's failure to serve such copy upon the attorney general may be excused by the court if the clerk of the court shall have delivered a copy thereof to the attorney general within the time required." This may suggest there always was some concern that in the Court of Claims some litigants might be unable to effect personal service on the Attorney General.

Neither the memorandum accompanying the 1984 amendment (Judiciary mem., 1984 McKinney's Session Laws of N.Y., at 3868) nor the Governor's bill jacket for that amendment contain any significant discussion of the new form of service that was being instituted. Instead, the comments focused on the need to remove the language permitting (but not requiring) service to be carried out by the Clerk of the Court. The only references to the use of CMRRR in the Governor's bill jacket suggest that the alternative of CMRRR service was included to make it "easier for claimants to execute service" (Governor's bill jacket: July 2, 1984 letter of [then] Presiding Judge of the Court of Claims Harold E. Koreman) and to "[simplify] service procedures in the Court of Claims"
and "foreclose dismissal of claims on jurisdictional grounds" when claimants or their counsel improvidently relied upon the Clerk of the Court to serve the claim (id: July 11, 1984 letter of Michael Colodner, Counsel, Unified Court System).[4]
Although the legislative history does not explain the precise reason that CMRRR service was introduced for Court of Claims practice, it should be assumed there was some rational basis for that inclusion. Given the large number of
pro se prisoner claims filed in this Court, the most logical assumption is that the Legislature sought to provide an alternative to personal service that could be implemented with some ease by persons who were incarcerated and who were unlikely to be represented by counsel. Service by mail is a logical choice for such litigants, and by requiring that the form of mail be CMRRR, the Legislature assured, as it did later in CPLR 312-a (see footnote 2), that service could be reliably verified because the "green card" receipts that are signed by the recipient in CMRRR delivery service are the functional equivalent of the "acknowledgment of receipt" form that a defendant signs in CPLR 312-a service. In deference to the Legislature's prerogative in such matters, the Court of Claims Act § 11(a) has been strictly construed; and different, albeit similar, forms of mail or delivery service have been held insufficient to obtain personal jurisdiction over the State (Hodge v. State of New York, 158 Misc 2d 438, 441 [Ct Cl 1993], aff'd 213 A.D.2d 766 [3d Dept 1995]). Such deference does not require, however, that the Court read into a statute an unnecessary and illogical limitation that, quite likely, would defeat the very purpose of the legislation.
Defendant's argument that CMRRR service must be carried out by someone
other than a party overlooks the fact that CMRRR service does not pose the risks that led to CPLR's 2103 (a) prohibition on having a party effect other types of service. According to one commentator, the principal reasons for such a prohibition are concerns that direct contact between individuals with a dispute might lead to breach of the peace and that a party might be motivated to produce a false affidavit of service (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2103:2). Neither of these concerns arise when CMRRR service is employed: the actual delivery is physically implemented by an entirely neutral person – an employee of the United States Postal Service – and confirmation of service is provided not by a potentially false affidavit but by a written acknowledgment of the party who was served. In effect, as noted above, the "green card" return receipt that is an integral part of CMRRR delivery fulfills the same function as the signed and returned "acknowledgment of receipt" form required when CPLR 312-a service by mail is employed.
Because this rather technical question is of such importance to many
pro se claimants and to the State prison system,[5] the Court has reviewed other instances in which the Legislature has authorized service, or notice, to be carried out by CMRRR.[6] Considering the examples found in other statutes, it appears that the Legislature may have chosen to authorize CMRRR service not only to avoid direct and possibly hostile confrontations between the parties and to remove any question as to the legitimacy of an affidavit of service, but also to provide an easier mechanism in situations where it would be very burdensome to require that service be made in person. Thus, the Surrogate's Court Procedure Act permits service by CMRRR on non-domicilaries, while requiring personal service on individuals residing in the State (SCPA §§ 307, 1214). And CMRRR service is also permitted for notifications that have to be provided by senior citizens (Insurance Law § 3111 [designation of a third party to receive notices of cancellations or nonrenewal]) or residents of private health care facilities (Public Health Law § 2801-d), suggesting that the Legislature is aware that it is a mechanism readily available to those who have limited mobility. Significantly, none of the statutes permitting or requiring CMRRR service expressly or implicitly require that anyone other than the person directly affected be the one to place the document in the custody of the postal system.
It is this Court's view that the CPLR 2103(a)'s prohibition against a party effecting service simply does not apply, and was never intended by the Legislature to apply, to service that is carried out by CMRRR. The only logical reasons to bar a party from carrying out personal or other traditional forms of service – prevention of hostilities and the need for independent verification of service – have no bearing when the physical act of delivery is carried out by a neutral third party and confirmation of receipt is provided, in writing, by the person or entity served. In enacting CPLR 312-a, and by authorizing CMRRR notification in the other situations mentioned above, in this Court's view the Legislature has indicated that where those concerns are removed, and where carrying out personal service would be unduly burdensome or impossible, there is no need or reason to prevent parties from initiating CMRRR service. Accordingly, because it is important for all litigants, especially
pro se and prison inmates, to readily access our justice system,[7] unless and until directed otherwise by a higher court or the Legislature, this Court will consider CMRRR service pursuant to Court of Claims Act §11(a)(i) carried out by a party to be proper.
* * *
Inasmuch as Claimant here has failed to provide proof of proper service on the Attorney General, Claim No. 106695 is hereby dismissed.

November 10, 2005
New York, New York

Judge of the Court of Claims

The following papers were read on the Court's motion for clarification regarding service of the claim:

  1. Order to Show Cause
2. Affirmation of J. Gardner Ryan, Esq., AAG,
  1. Affidavit of Claimant (none received)

Filed Papers: Claim

[1] It should be noted that even if the restriction of CPLR 2103 (a) does apply to service by CMRRR, it is not altogether clear what effect a violation of the statute would have on the viability of claims. "Whether service by a party in contravention of subdivision (a) results in a jurisdictional defect or a mere irregularity which may be disregarded is an unresolved issue" (4 Weinstein-Korn-Miller, NY Civ Prac, ¶ 2103.01).

In the 2nd and 4th Departments, it has been held that, at least where service of process (i.e., the summons and complaint or some other document that initiates an action or proceeding) is concerned, the action or proceeding must be dismissed if service was carried out by a party (Hawkins v. Szczesniak, 309 A.D.2d 1307 [4th Dept 2003] [petition to set aside decision of a commission]; Matter of Professional Fire Fighters Association, Local 274, Matter of (Bridgham-City of White Plains), 187 A.D.2d 433 [2d Dept 1992] [notice of petition and petition for arbitration award]; Kedzielawa v. Smolinski, 133 A.D.2d 517 [4th Dept 1987], lv denied 70 N.Y.2d 604 [1987] [designating petition]; Matter of Beverly E. v. William H., 53 A.D.2d 891 [2d Dept 1976] [summons]). This is true even where the party appearing pro se is also an attorney who represents other plaintiffs in the same action (Miller v. Bank of New York [Delaware], 226 A.D.2d 507 [2d Dept 1996]).

[2] By way of contrast, CPLR 312-a, for example, expressly authorizes a party to effect "personal service by mail."

As an alternative to the methods of personal service authorized by section 307, 308, 310, 311 or 312 of this article, a summons and complaint, or summons and notice, or notice of petition and petition may be served by the plaintiff or any other person by mailing to the person or entity to be served, by first class mail, postage prepaid. . .

(CPLR 312-a, added L.1989, c 274, § 2). In order to employ this optional method, the party attempting to effect service must send with the pleading two copies of a statement of service by mail, an "acknowledgment of receipt" form, and a return envelope, postage prepaid, addressed to the sender. If the defendant executes the acknowledgment and returns it, service is then complete. If the defendant does not acknowledge service in this manner, however, the person attempting to effect service must re-serve the document using one of the more traditional methods.

[3] Service on the State itself is made by personal delivery to the Attorney General or to an Assistant Attorney General at a regional office (CPLR 307[1]). Where, however, a State agency, or a State officer acting solely in his or her official capacity is sued, jurisdiction over the individual or agency requires that, in addition to service on the State, there must also be service on the officer, or the chief executive officer of the agency, or a person designated by the executive officer to receive service. Such service may be made personally or the summons may be mailed by CMRRR to the officer or to the agency's chief executive officer (CPLR 307[2]). Service is not complete until both steps (i.e., personal service on the State and service on the officer or agency) have been completed.

[4] Service in the Court of Claims by CMRRR had first been proposed a year earlier, in a bill that ultimately was vetoed by Governor Cuomo (Veto Message No. 59, July 1983). The Veto jacket for that bill (Senate Bill Number 6047-A) contains only one reference to the addition of a CMRRR alternative. Attorney General Robert Abrams recommended that if CMRRR service was to be permitted, the statute should also specify that service would be complete upon receipt of the notice of intention or claim by the Attorney General, not on the date that the document was mailed. The 1984 version included such a specification.

[5]Pursuant to the Codes Rules and Regulations of the Department of Correctional Services, each inmate receives a weekly free postage allowance (equivalent to five domestic first class one ounce letters) to pay for outgoing privileged correspondence, including mail to any governmental or public official (7 NYCRR § 721.2[a][1]). Such allowance cannot be used for any special handling charges, such as for CMRRR, "unless such mail services are required by statute, court rule or court order" (7 NYCRR § 721.3[a][3][ii][a]). In addition, inmates may receive an advance to pay for postage, including CMRRR, if they do not have sufficient funds to pay for it themselves, the advance is for legal mail, and special handling postage, such as CMRRR, is required by a statute, court rule or court order (7 NYCRR § 721.3[a][3]). It is difficult to envision all the complexities that would ensue for inmates and prison officials alike if legal mail that requires CMRRR service had to be carried out, i.e., physically delivered to the employee of the United States Postal Service, by an inmate other than the one to whom it relates.

[6]Most of the statutes designating this type of service or notification relate to notice being provided to or by governmental entities and businesses, such as notice given to the apparent owners of abandoned property (e.g., Abandoned Property Law § 1422) or stray animals that have been seized (Agriculture and Markets Law § 118), or notice given between individuals and certain licencing entities (e.g., Alcoholic Beverage Control Law § 64; Education Law § 6510). In some instances, however, CMRRR has been designated as a method to be used between individuals who may be in an adversarial relationship. Arts and Cultural Affairs Law § 60.05 requires that a consumer who has not received a certificate of authenticity from a dealer of autographed sports collectibles must give notice to the dealer by CMRRR fifteen days prior to commencing an action to recover damages; and CPLR 5020 provides that where a judgment creditor who has been paid fails to execute the required legal satisfaction, the judgment debtor may serve a demand that he or she do so by CMRRR. In addition, various businesspeople may initiate enforcement of a lien by CMRRR service on the owner of the property against which a lien is being imposed (Lien Law, §§ 21, 182, 184).

[7]Indeed, the particular needs of prison inmates who are pro se litigants who "cannot take the steps other litigants can take" is well-recognized and has led, in some instances, to special rules regarding when, for example, a notice of appeal or other time-critical legal documents are deemed to have been filed or served (Houston v. Lack, 487 U.S. 266, 270 [1988]; Dory v. Ryan, 999 F2d 679 [2d Cir 1993]). New York has not adopted the Federal "mailbox rule" that was established by such cases, which makes filing or service complete as soon as legal documents are turned over to prison officials. Such a rule was considered unnecessary in this State because "the Legislature has already enacted procedures that give an incarcerated pro se litigant a measure of control over and knowledge about the processing of his claim" (Espinal v. State of New York, 159 Misc 2d 1051, 1054 [Ct Cl 1993] [specifically mentioning the availability of CMRRR service]).