New York State Court of Claims

New York State Court of Claims

PRATT v. THE STATE OF NEW YORK, #2006-015-061, Claim No. 109676, Motion No. M-70872


Synopsis


Claim dismissed for lack of jurisdiction due to service by ordinary mail.

Case Information

UID:
2006-015-061
Claimant(s):
ANDREW PRATT
Claimant short name:
PRATT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109676
Motion number(s):
M-70872
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Andrew Pratt, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michele M. Walls, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 18, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Trial of this claim was held on November 17, 2005 at Great Meadow Correctional Facility (Great Meadow). By notice of motion filed on October 26, 2005 defendant moved to dismiss the claim for lack of jurisdiction asserting the claim was served by ordinary mail. Claimant opposed the motion by written "reply" which was not sworn to before a notary public and is therefore without legal effect. The court did not rule on the motion and allowed claimant to present testimony regarding his claim.

For the reasons which follow the defendant's motion is granted and the claim is dismissed. Defense counsel alleged in her affirmation in support of the motion to dismiss that although claimant served a notice of intention upon the Attorney General by certified mail, return receipt requested he later served the actual claim by ordinary mail. A photocopy of the envelope in which the claim was served upon the Attorney General was submitted as part of Exhibit A. The envelope bears postage of only $0.83 and displays none of the indicia of certified mail, return receipt requested. This submission satisfactorily demonstrates service of the claim by ordinary mail.

In his unsworn statement in opposition to the motion the claimant did not dispute defense counsel's assertion that the claim was served by ordinary mail. Instead, claimant argues that he correctly served a notice of intention by certified mail, return receipt requested and that the defendant's position requiring certified mail service of both the notice of intention and the claim is "extremely unnecessary." He argues that the Court should treat the notice of intention as a claim citing Jacobs v State of New York 129 AD2d 772; Trayer v State of New York, 90 AD2d 263; Otis Elevator Co. v State of New York, 52 AD2d 380; Williams v State of New York, 28 AD2d 1174, and Matter of Sarlat v State of New York, 119 Misc 2d 369. The cases cited are inapposite since Court of Claims Act § 10 (8) (a) requires that such relief be requested by motion.

Specifically, subdivision (a) of paragraph 8 of section 10 provides:
8. (a) A claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant.

Since claimant did not cross-move for permission to treat the notice of intention as a claim the request for such relief contained in his unsworn submission must be denied.

The law regarding the manner of service of a claim is well settled. "Ordinary 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 "the use of ordinary mail to serve the claim upon the Attorney-General is insufficient to acquire jurisdiction over the State" (Philippe v State of New York, 248 AD2d 827). Defendant having established that service of the claim was not accomplished in accordance with the requirements of Court of Claims Act § 11 (a), the Court lacks jurisdiction and the claim must be dismissed (Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687).

Accordingly, the instant claim is dismissed. This dismissal renders the Court's consideration of the trial evidence academic.


January 18, 2006
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated October 25, 2005;
  2. Affirmation of Michele M. Walls dated October 25, 2005 with exhibits;
  3. Claimant's reply to motion for summary judgment dated October 27, 2005 with exhibits.