New York State Court of Claims

New York State Court of Claims

MERCED v. THE STATE OF NEW YORK, #2006-009-012, Claim No. 110820, Motion No. M-70830


Synopsis


Defendant's motion for an order dismissing the claim based upon improper service was granted.

Case Information

UID:
2006-009-012
Claimant(s):
CHRISTOPHER MERCED
Claimant short name:
MERCED
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110820
Motion number(s):
M-70830
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
CHRISTOPHER MERCED, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Thomas M. Trace, Esq.,
Senior AttorneyOf Counsel.
Third-party defendant's attorney:

Signature date:
March 1, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking an order dismissing the claim based upon improper service.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2


Correspondence from Claimant dated October 17, 2005 3

Pursuant to Court of Claims Act § 11(a), both a notice of intention to file a claim and a claim must be served upon the Attorney General either personally or by certified mail, return receipt requested (Hodge v State of New York, 213 AD2d 766). Such provisions are jurisdictional prerequisites to the institution and maintenance of a claim, and as such must be strictly construed (Greenspan Bros. v State of New York, 122 AD2d 249). Service of a claim by ordinary, first class mail is not one of the methods of service authorized by Court of Claims Act § 11(a) (Turley v State of New York, 279 AD2d 819), and service of a claim which is not made in accordance with the provisions of § 11 is insufficient to confer jurisdiction over the State (Hodge v State of New York, supra; Philippe v State of New York, 248 AD2d 827).

In his supporting affirmation (see Item 2), defendant's attorney acknowledges that claimant properly served a notice of intention to file a claim by certified mail, return receipt requested. Defendant's attorney contends, however, that claimant then served his claim by regular, first class mail, and that such service is jurisdictionally defective.

Defendant has attached a copy of the envelope in which the claim was mailed (see Exhibit D to Items 1,2), on which postage in the amount of $1.52 is indicated. This amount of postage is less than the amount required for certified mail, return receipt requested service. Additionally, there are no other markings on the envelope to indicate that the claim was served by certified mail, return receipt requested, as required by statute.

Claimant has not disputed the contentions raised by defendant as to the manner of the service of the claim. In fact, in the correspondence submitted by claimant in response to this motion (see Item 3), he admits that he improperly served his claim.

Based on the submissions, the Court finds that defendant has established that claimant served his claim upon the Attorney General by regular, first class mail, which is not a method of service authorized by Court of Claims Act § 11. Accordingly, this Court lacks jurisdiction and the claim must be dismissed.

Based on the foregoing, therefore, it is

ORDERED, that Motion No. M-70830 is hereby GRANTED; and it is further

ORDERED, that Claim No. 110820 is hereby DISMISSED.


March 1, 2006
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims