New York State Court of Claims

New York State Court of Claims

VALLEN v. THE STATE OF NEW YORK, #2006-013-068, Claim No. 107139, Motion No. M-71410


Synopsis



Case Information

UID:
2006-013-068
Claimant(s):
BARRY LEE VALLEN
1 1.The Court has sua sponte amended the caption to reflect the only properly named defendant.
Claimant short name:
VALLEN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107139
Motion number(s):
M-71410
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant’s attorney:
BARRY LEE VALLEN, Pro Se
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 23, 2006
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


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


Opposing “Affidavit”


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 thereto.

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.


October 23, 2006
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims