New York State Court of Claims

New York State Court of Claims

ROSS v. THE STATE OF NEW YORK, #2006-015-124, Claim No. 107073, Motion No. M-71914


Synopsis


Claim was dismissed for failure to serve the Attorney General in accordance with the requirements of Court of Claims Act § 11 (9).

Case Information

UID:
2006-015-124
Claimant(s):
RICHARD ROSS
Claimant short name:
ROSS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107073
Motion number(s):
M-71914
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Richard Ross, Pro Se, No Appearance
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant’s attorney:

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

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant's motion to dismiss the claim for lack of jurisdiction is granted. By decision and order dated December 12, 2003 the Honorable James J. Lack conditionally granted a late claim application in a case where the filed claim remained viable. Although the instant claim was originally before Judge Lack, the case was reassigned to this Court following claimant's release from custody. This Court was unaware of Judge Lack's December 12, 2003 decision and order on the prior late claim motion until it was appended to the instant motion to dismiss.

The defendant has moved to dismiss the claim for claimant's non-compliance with Judge Lack's directive to serve and file a claim within 45 days of the December 31, 2003 filing of the decision and order. Such relief must be denied, however, since the subject claim was filed prior to Judge Lack's decision and order and was not directly effected by it. Although Assistant Attorney General Michael Friedman alleges in paragraph 13 of his supporting affirmation that the claim should be dismissed for claimant's failure to adhere to Judge Lack's direction, claimant's failure to file a second claim pursuant to Judge Lack's order is of no consequence to the fate of the original claim.

Defense counsel, however, further asserts in paragraphs 4 and 5 of his affirmation in support of the motion that the subject claim was served upon the Attorney General on December 12, 2002 by ordinary mail. Proof of such service including a photocopy of the envelope in which the claim was received was submitted on the motion. The envelope shows metered postage of $0.83 and contains no indicia of the use of certified mail, return receipt requested. Defense counsel's allegations concerning service are not disputed by claimant who failed to oppose the motion.

"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 has established that service of the claim was not accomplished in accordance with the requirements of Court of Claims Act § 11 (a) and, as a result, 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.



September 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 June 20, 2006;
  2. Affirmation of Michael W. Friedman dated June 20, 2006 with exhibits.