New York State Court of Claims

New York State Court of Claims

McCASTER v. STATE OF NEW YORK, #2006-018-519, Claim No. 111977, Motion No. M-71448


Synopsis


Claim is DISMISSED - Court of Claims Act § 11.

Case Information

UID:
2006-018-519
Claimant(s):
BRUCE McCASTER
1 1.The Court has amended the caption sua sponte to reflect the State of New York as the only proper Defendant.
Claimant short name:
McCASTER
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The Court has amended the caption sua sponte to reflect the State of New York as the only proper Defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111977
Motion number(s):
M-71448
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
BRUCE McCASTERPro Se
Defendant’s attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: THOMAS M. TRACE, ESQUIRESenior Attorney
Third-party defendant’s attorney:

Signature date:
May 15, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The defendant brings a pre-answer motion to dismiss the claim for lack of jurisdiction.

Claimant has not submitted any response to the motion.

Defendant argues that the Court lacks personal jurisdiction over the claim because although Claimant, an inmate, correctly served a notice of intention upon the Attorney General by certified mail, return receipt requested, on October 24, 2005, this did not extend the time Claimant had to file and serve his lost property claim. Court of Claims Act § 10(9) has specific requirements for commencing a lost property claim which do not include permitting an extension of time for bringing the claim by service of a notice of intention. Defendant goes on to argue that the claim was served upon the Attorney General on February 13, 2006 by regular mail, an improper method of service. For these reasons, Defendant seeks dismissal of the claim. Defendant has attached a copy of the envelope in which the claim was sent as Exhibit C. The envelope reflects postage of only 63 cents, and no certified mail label.

The claim must be DISMISSED. Court of Claims Act § 11 (a)(i) states in relevant part that “the claim shall be filed with the clerk of the court... [and] 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...”

It is well established that the requirements for service on the Attorney General are jurisdictional and must be strictly construed (Byrne v State of New York, 104 AD2d 782, 783, lv denied 64 NY2d 607). Service by regular mail is not service sufficient to commence an action in this Court and the Court cannot ignore the service defect (see Bogel v State of New York, 175 AD2d 493, 494 [“[s]ervice of the claims upon the Attorney-General by ordinary mail was insufficient to acquire jurisdiction over the state” and the claim was therefore properly dismissed]; Diaz v State New York, 174 Misc 2d 63, 64 [“service by regular mail does not comply with the requirements of the statute and such service is therefore not adequate to acquire jurisdiction over the State.” Furthermore, “the court does not have the discretion to disregard the defect”].

Here, it has been established that Claimant served the claim upon the Attorney General by regular mail, which is not a method of service in compliance with Court of Claims Act § 11. Thus, the Court lacks jurisdiction over the Defendant.[2]

Based upon the foregoing, the Defendant’s motion is GRANTED and claim is hereby DISMISSED.


May 15, 2006
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


Notice of Motion...............................................................................................1


Affirmation of Thomas M. Trace, Esquire, Senior Attorney,

in support, with exhibits attached thereto..............................................2


No response was submitted by Claimant.


[2].The claim may also be untimely; however, Claimant provides no dates for when he pursued his administrative remedies with the correctional facility Court of Claims Act § 10(9) provides that for damages for injury to or loss of personal property, a claim may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy established for inmates by the Department of Correctional Services. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy. Unlike the provisions in Court of Claims Act §§ 10 (2) - (4), no provision is made for extending the time for filing and service of the claim by filing a notice of intention and, thus, service of the notice of intention is a nullity (see Gloster v State of New York, 6 Misc 3d 1001[A]).