New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2006-009-064, Claim No. 111248, Motion No. M-72094


Synopsis


Defendant’s motion to dismiss the claim based upon improper service was granted.

Case Information

UID:
2006-009-064
Claimant(s):
DARRELL SMITH
Claimant short name:
SMITH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111248
Motion number(s):
M-72094
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
DARRELL SMITH, Pro Se
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General
BY: Paul Volcy, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
November 21, 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

Claimant has not submitted any papers in opposition, nor has he contacted the Court in any manner whatsoever with regard to this motion.

Pursuant to Court of Claims Act § 11(a), 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 contends that claimant 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 A to Items 1,2), on which postage in the amount of $0.37 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.

Based on these 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-72094 is hereby GRANTED; and it is further

ORDERED, that Claim No. 111248 is hereby DISMISSED.



November 21, 2006
Syracuse, New York

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