New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2006-028-563, Claim No. 105772, Motion No. M-71153


Synopsis



Case Information

UID:
2006-028-563
Claimant(s):
LEROY RIVERA
1 1.The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
RIVERA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105772
Motion number(s):
M-71153
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant’s attorney:
LEROY RIVERA, pro se
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Kathleen M. Arnold, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 20, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Defendant’s motion for an order of dismissal:

1. Notice of Motion and Supporting Affirmatioin of Kathleen M. Arnold, Esq., with annexed Exhibits

2. Affidavit in Opposition (none received)


Filed papers: Claim; Answer


This is a bailment claim that arose at Greene Correctional Facility in December 2001. The Claim was served on the Attorney General on March 5, 2002 (Arnold Affirmation, Exhibit A). In its answer, Defendant raised, as its second affirmative defense, lack of personal jurisdiction as follows: “the claim was not served in compliance with Section 11(a) of the Court of Claims Act in that the claim was delivered by regular mail instead of served personally or by certified mail, return receipt requested.” This statement contains sufficient information to meet the particularity requirement of section 11(c).

In support of the motion, Defendant attached a copy of the envelope in which the Claim was received, verifying that regular mail service was used (Arnold Affirmation, Exhibit A), and Claimant has failed to submit any opposition to the motion, apparently conceding that the Claim was not properly served.

Court of Claims Act § 11 (a) provides, in relevant part, that a copy of the claim at issue "shall be served personally or by certified mail, return receipt requested, upon the attorney general." The requirements set forth in Court of Claims Act § 11 are jurisdictional in nature and, as such, must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). A claimant’s failure to serve the Attorney General personally or by certified mail, return receipt requested, is a fatal jurisdictional defect and deprives this Court of the power to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721, 724; Bogel v State of New York, 175 AD2d 493).

Consequently, Defendant’s motion is GRANTED and Claim No. 105772 is dismissed.


July 20, 2006
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims