New York State Court of Claims

New York State Court of Claims

ROGOWSKI v. THE STATE OF NEW YORK, #2006-015-130, Claim No. 110968, Motion No. M-71945


Defendant's motion to dismiss claim pursuant to CPLR 3211 (a) was granted notwithstanding that motion to dismiss was technically untimely.

Case Information

1 1.The caption is amended sua sponte to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption is amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Thomas Rogowski, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 6, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves to dismiss the claim pursuant to CPLR 3211(a) on the grounds that the Court lacks subject matter jurisdiction and personal jurisdiction over the defendant. For the reasons which follow, the motion is granted. Claimant alleges that on July 21, 1994 he was sentenced in the Supreme Court, Schenectady County, to a term of 8 1/3 to 25 years in prison for a Class D violent felony offense. He alleges in his claim that a class D felony “carries at least [a] 2 1/3 to 7 yrs. Prison Term” and contends that the term of imprisonment actually imposed was excessive and therefore improper. The claimant discovered the alleged error in sentencing on or about December 28, 2004 when he was researching his sentencing minutes, a task he undertook only after becoming a Legal Research Clerk at the prison in which he was confined.

The claim was filed with the clerk of the court on June 3, 2005 and served by regular mail on the Attorney General. In support of its motion to dismiss the claim, defendant submitted a copy of the claim as well as a copy of the envelope in which the claim was mailed. Both the claim and the cover letter which accompanied it are date-stamped as received by the defendant on February 13, 2006. The envelope, also bearing the notation that it was received on February 13, 2006, reflects that it was mailed by regular mail.

The law is clear that the State’s waiver of immunity under Section 8 of the Court of Claims Act is contingent upon claimant’s compliance with specific conditions set forth in article II of the Court of Claims Act (see Lepkowski v State of New York, 1 NY3d 201, 206). “Because suits against the State are allowed only by the State’s waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed” (Long v State of New York, 7 NY3d 269, 275 quoting Lichtenstein v State of New York, 93 NY2d 911, 913 [other citations omitted]). Court of Claims Act § 11(a)(i) requires that the claim be filed with the Clerk of the Court and that “a copy [of the claim] shall be served upon the attorney general ... either personally or by certified mail, return receipt requested," within the time prescribed in Court of Claims Act § 10. As a result, absent a waiver, service upon the attorney general by regular mail is insufficient to acquire jurisdiction over the State (see Govan v State of New York, 301 AD2d 757). Accordingly, the defendant's motion to dismiss for improper service is well founded.

It cannot be overlooked, however, that defendant's motion to dismiss was untimely. Notwithstanding the receipt of this claim on February 13, 2006, the defendant delayed making its motion to dismiss pursuant to CPLR 3211(a) until July 3, 2006. Section 3211(e) specifically requires that such a motion be made “[a]t any time before service of the responsive pleading is required.” An answer to the claim was required to be served within 40 days of the pleading to which it responds (see 22 NYCRR § 206.7) Thus, the defendant was in default at the time the motion to dismiss was made. However, as stated by the Court in Government Employees Insurance Co. v Basedow, 28 AD3d 766, 767, “[a]lthough [the defendant’s] motion was technically untimely, ‘[f]ailing to recognize the realities and adhering to the technicalities would simply undermine the speedy and inexpensive resolution of the controversy” (quoting Miller v Weyerhaeuser Co., 179 Misc 2d 471, 477). This practical perspective leads to the conclusion that the defendant’s motion in this case should be granted notwithstanding its failure to adhere to the time limitations set forth in CPLR 3211(e).

For the foregoing reasons, the defendant’s motion to dismiss the claim is granted.

October 6, 2006
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of Motion dated July 3, 2006;
  2. Affidavit of Michael C. Rizzo sworn to July 3, 2006 with exhibit;
  3. "Notice of Motion" dated July 10, 2006;
  4. Affidavit of Thomas Rogowski sworn to July 10, 2006 with exhibits.