Claim served on Defendant by registered mail, return receipt requested satisfied the requirements of Court of Claims Act § 11(a). Defendant's motion for dismissal of the claim denied.
|Claimant(s):||JAMES D. FILOZOF|
|Claimant short name:||FILOZOF|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||RENÉE FORGENSI MINARIK|
|Claimant's attorney:||JAMES D. FILOZOF, PRO SE|
|Defendant's attorney:||HON. ELIOT SPITZER
New York State Attorney General
BY: HEATHER R. RUBINSTEIN, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 20, 2006|
|Appellate results:||45 AD3d 1405|
|See also (multicaptioned case)|
The following papers were read on motion by Defendant for dismissal of the claim:
1) Defendant's Notice of Motion, filed April 7, 2006;
2) Affirmation of Heather R. Rubinstein, Esq., dated April 5, 2006, with attached exhibits;
3) Filed documents: Claim and Verified Answer.
In his claim filed on February 27, 2006, Mr. Filozof alleges that, beginning on June 6, 2005, Defendant improperly discontinued giving Claimant certain necessary prescribed medications.
With this motion, Defendant seeks dismissal of the claim based upon Claimant's failure to serve the notice of intention to file a claim upon the Attorney General by certified mail, return receipt requested ("CMRRR") as required by Court of Claims Act § 11(a). Defendant has submitted a copy of the envelope in which the notice of intention was received, which demonstrates that the notice of intention was served by registered mail, return receipt requested, but not CMRRR. In support of its motion, Defendant relies on Diaz v State of New York (174 Misc 2d 63). I note, however, that Diaz involved service by regular mail and not registered mail, return receipt requested.
Court of Claims Act § 11(a) provides, in relevant part, that the notice of intention 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). The issue of whether registered mail, return receipt requested, satisfies § 11(a) was addressed in Landmesser v State of New York (Ct Cl, January 4, 2002 [Claim No. 101046], Scuccimarra, J., UID #2002-030-001). In that case, Judge Scuccimarra, citing Schaeffer v State of New York (145 Misc 2d 135), noted that "registered mail is a service provided by the United States Postal Service akin to certified mail and, indeed, stricter, because not only must the addressee sign the receipt, but the mail is monitored from the moment it is placed in the custody of the Postal Service until its delivery." In accordance with that decision I find that Claimant's service of the notice of intention by registered mail, return receipt requested satisfied the requirements of Court of Claims Act § 11(a).
Accordingly, for the reasons stated above, it is hereby
ORDERED, that Defendant's motion is denied.
July 20, 2006
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims