New York State Court of Claims

New York State Court of Claims

GAUVREAU v. THE STATE OF NEW YORK, #2006-015-102, Claim No. 111842, Motion No. M-71440


Synopsis


Court lacks jurisdiction over claim served upon the Attorney General by ordinary mail.

Case Information

UID:
2006-015-102
Claimant(s):
RAYMOND GAUVREAU
1 1.The caption of this claim is amended sua sponte to reflect the only properly named defendant.
Claimant short name:
GAUVREAU
Footnote (claimant name) :

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

Third-party defendant(s):

Claim number(s):
111842
Motion number(s):
M-71440
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Raymond Gauvreau, Pro SeNo Appearance
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 29, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant's pre-answer motion to dismiss the claim for lack of jurisdiction is granted. The claim allegedly accrued on August 30, 2005 when claimant attempted to reposition a fan in the A-1 Dormitory of Washington Correctional Facility in Comstock, New York. It is alleged that claimant's index finger went through a damaged fan guard and came in contact with the fan blades.

In support of the motion defendant submitted the affirmation of Assistant Attorney General Belinda A. Wagner dated March 15, 2006 in which counsel alleges, inter alia, that the claim was served upon the Attorney General by regular mail in contravention of the requirements of Court of Claims Act § 11 (a). Exhibit "A" attached to the motion is a photocopy of the claim and the envelope purportedly used to serve the claim on February 7, 2006. The envelope shows postage paid in the amount of $0.39 and contains no indicia of service by certified mail, return receipt requested.

The Assistant Attorney General's allegations concerning service by regular mail are not disputed by claimant who failed to timely oppose the motion[2]. Even if the Court were to consider claimant's belatedly submitted affidavit, claimant merely alleges therein that he attached a disbursement form to the envelope and that he had sufficient funds in his account to pay for certified mail. Claimant does not state that he requested service of the claim by certified mail, return receipt requested or authorized disbursement of an amount from his inmate account which was adequate to pay for such service. The record, however, is devoid of any proof demonstrating service of the claim by one of the service methods prescribed by Court of Claims Act § 11 (a) (i) which provides:
§ 11. Filing, service and contents of claim or notice of intention

a. (i) [Eff. until Sept. 1, 2009, pursuant to L.2002, c. 110, § 3. See, also, par. (i), below.] The claim shall be filed with the clerk of the court; and, except in the case of a claim for the appropriation by the state of lands, a copy shall be served upon the attorney general within the times hereinbefore provided for filing with the clerk of the court either personally or by certified mail, return receipt requested, or, where authorized by rule of the chief administrator of the courts and upon consent of the attorney general, by facsimile transmission or electronic means, as defined in subdivision (f) of rule twenty-one hundred three of the civil practice law and rules, in such manner as may be provided by rule of court. Any notice of intention shall be similarly served upon the attorney general within the times hereinbefore provided for service upon the attorney general. Service by certified mail, return receipt requested, upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general. Personal service upon the attorney general shall be made in the same manner as described in section three hundred seven of the civil practice law and rules.
"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.



June 29, 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 March 15, 2006;
  2. Affirmation of Belinda A. Wagner dated March 15, 2006 with exhibit.

Untimely submitted and not considered:

1. Notice of motion to dismiss dated April 12, 2006;
  1. Affidavit of Raymond Gauvreau in support of motion to dismiss sworn to April 12, 2006 with exhibit.

[2].The return date of this motion was April 5, 2006. On or about April 17, 2006, claimant submitted opposition papers (incorrectly entitled "Notice of Motion to Dismiss") which were not accompanied by proof of service upon the Attorney General. Those papers were returned to claimant who resubmitted them with proof of service on June 1, 2006.