New York State Court of Claims

New York State Court of Claims
FILOZOF v. THE STATE OF NEW YORK, # 2006-031-051, Claim No. 112016, Motion No. M-71577

Synopsis

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.

Case information

UID: 2006-031-051
Claimant(s): JAMES D. FILOZOF
Claimant short name: FILOZOF
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 112016
Motion number(s): M-71577
Cross-motion number(s):
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
City: Rochester
Comments:
Official citation:
Appellate results: 45 AD3d 1405
See also (multicaptioned case)

Decision

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