On September 20, 2006, the following papers were read on motion by Defendant
for dismissal of the claim:
Notice of Motion, Affirmation and Exhibit Annexed
Filed Papers: Claim; Answer
Upon the foregoing papers, this motion is granted.
The claim herein was filed on December 30, 2002 and alleges, inter alia,
intentional tort, intentional infliction of emotional distress, libel and
slander, all accruing on or about May 2002 at the Forensic Unit of the
Rochester Psychiatric Center (RPC). The claim asserts that a notice of
intention to file a claim was served upon the Defendant in July 2002.
In the instant motion, the Defendant seeks dismissal of the claim on the ground
that the Court lacks subject matter jurisdiction over the claim, as it was not
served in accordance with the requirements of Court of Claims Act
§11(a)(i), to wit, it was served by regular mail (see Exhibit A to
the motion, a copy of the envelope utilized for service), and not personally or
by certified mail, return receipt requested. In that regard, the Defendant has
preserved this issue as its seventh affirmative defense with the requisite
particularity required by §11(c).
The only issue before me is the improper service of the claim, an assertion
that the Claimant does not dispute. He raises in opposition the notion that he
has been hospitalized at Rochester Psychiatric Center (RPC) for what appears to
be some number of years, and that because of such hospitalization there was no
way or opportunity for him to send such documents by certified mail, return
receipt requested. In Claim No. 106239, Motion No. M-71455, decided on
September 20, 2006, with the same Claimant and the same issues relating to
service of another claim, the Defendant posited that hospitalized individuals
such as Claimant can procure funds for such certified correspondence from the
RPC mail room. Claimant asserts that he knew nothing about the availability of
such mailing services, and that as a patient he was not informed that it could
be accomplished, and that nothing is posted for RPC patients with respect
Regardless, it is black letter law that service of claims by ordinary mail is
insufficient to acquire jurisdiction over the State (Charbonneau v State of
New York, 178 AD2d 815, 816, affd sub nom. Dreger v New York State
Thruway Auth., 81 NY2d 721; Turley v State of New York, 279 AD2d 819,
rearg denied 96 NY2d 855). The failure to comply with the time and
manner of service requirements contained in Sections 10 and 11 of the Court of
Claims Act is a fatal jurisdictional defect and deprives this Court of the power
to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d at 724;
Bogel v State of New York, 175 AD2d 493). Accordingly, I am constrained
to grant the motion and dismiss the claim.
To the extent that Claimant’s papers allude to filing a late claim, that
also must be denied. An application for permission to file a late claim
pursuant to Court of Claims Act §10(6) requires a notice of motion,
supporting affidavit and a proposed claim. Claimant’s informal references
for such relief are inadequate.
The Defendant’s motion is granted and the claim is dismissed.