New York State Court of Claims

New York State Court of Claims

SIMPSON v. STATE OF NEW YORK, #2006-018-552, Claim No. 112689, Motion No. M-72291


Synopsis



Case Information

UID:
2006-018-552
Claimant(s):
CHRIS SIMPSON
Claimant short name:
SIMPSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112689
Motion number(s):
M-72291
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
CHRIS SIMPSONPro Se
Defendant’s attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 20, 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 opposes the motion asserting he is proceeding pro se and is “less than a layman in the law.” Claimant argues that he mailed the claim to the Office of the Attorney General on August 21, 2006. He attaches the disbursement forms for the mailing. Those documents evidence $.87 was deducted from Claimant’s account for the mailing to the Attorney General. There is no indication from the documents that Claimant intended the claim to be sent certified mail, return receipt requested, and no return receipt was produced.

Defendant argues that the Court lacks personal and subject matter jurisdiction over the claim because the Claimant failed to timely serve a notice of intention or file and serve a claim in accordance with Court of Claims Act §§ 10 and 11. Defendant argues that the claim was sent to the Attorney General on August 21, 2006, by regular mail, not certified mail, return receipt requested, as required by Court of Claims Act §11(a). Defendant has attached a copy of the envelope in which the claim was sent as Exhibit B. The envelope reflects postage of only $.87 and no certified mail label.

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 personally or by certified mail, return receipt requested, upon the attorney-general within the time frames hereinbefore provided for filing with the clerk of the court” [emphasis added].

It is well-established that the requirements for service upon 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 of New York, 174 Misc 2d 63, 64 [“[s]ervice 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 claim.

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



December 20, 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 Joel L. Marmelstein, Esquire, Assistant Attorney

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


Affidavit of Chris Simpson, in opposition, sworn to September 14, 2006,

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