New York State Court of Claims

New York State Court of Claims

TINSLEY v. STATE OF NEW YORK, #2006-018-521, Claim No. 111782, Motion No. M-71787


Synopsis


Claim dismissed - improper service of claim.

Case Information

UID:
2006-018-521
Claimant(s):
RAYMOND TINSLEY
1 1.There is some confusion in the proper spelling of the Claimant’s name, if it is spelled Tinsley or Tinsely.
Claimant short name:
TINSLEY
Footnote (claimant name) :
There is some confusion in the proper spelling of the Claimant’s name, if it is spelled Tinsley or Tinsely.
Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111782
Motion number(s):
M-71787
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
Raymond TinsleyPro Se
Defendant’s attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 6, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The Defendant brings a motion to dismiss the claim for lack of subject matter jurisdiction

due to improper service. Claimant opposes the motion.

Defendant asserts that Claimant served a notice of intention together with the claim on December 29, 2005, by certified mail only, no return receipt was requested. Defendant properly, and with particularity, set forth its objection in its “Second Affirmative Defense” in the Verified Answer (Court of Claims Act § 11[c]).

Claimant has not produced a signed green receipt card evidencing proper service of the claim in accordance with Court of Claims Act § 11.

The Court of Claims Act § 11(a)(i) states in relevant part that “[t]he 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...”

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 a method other than certified mail return receipt requested is not service sufficient to commence an action in this Court (Hodge v State of New York, 158 Misc 2d 438, affd 213 AD2d 766). Although Claimant sent the claim by certified mail, the failure to request a return receipt results in a fatal jurisdictional defect (Jackson v State of New York, Ct Cl, Fitzpatrick, J., November 10, 2005, Claim No. 109121, Motion No. M-70364 [UID# 2005-018-491]; Young v State of New York, Ct Cl, Minarik, J., Claim No. 107762, Motion No. M-66910, December 11, 2003 [UID # 2003-031-104]). The Court does not have the discretion to disregard a defect in service. The Court lacks jurisdiction to hear this claim.

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


July 6, 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 G. Lawrence Dillon, Esquire, Assistant Attorney General,

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


Letter response from Claimant dated May 31, 2006, in opposition

with attachments....................................................................................3