New York State Court of Claims

New York State Court of Claims

BRODIE v. THE STATE OF NEW YORK, #2006-032-008, Claim No. 107265, Motion No. M-70666


Synopsis



Case Information

UID:
2006-032-008
Claimant(s):
ARTHUR BRODIE
Claimant short name:
BRODIE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107265
Motion number(s):
M-70666
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Arthur Brodie, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Paul F. Cagino, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
February 15, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves this Court to dismiss the claim pursuant to CPLR 3211, for failure to

serve the Attorney General as required by Court of Claims Act § 11.


In January 2003, claimant filed this claim alleging that he sustained injuries from a motor vehicle accident on August 7, 2002, while being transported to Coxsackie Correctional Facility. Defendant was served with the claim on January 30, 2003.[1] Thereafter, defendant interposed an answer asserting several affirmative defenses, including failure to comply with the service requirements of Court of Claims Act § 11. In support of its motion, defendant argues that although claimant served the claim via certified mail, the mailing did not contain a request for a return receipt.

Pursuant to Court of Claims Act § 11(a)(i), any party seeking to file a claim against the State must serve a copy of it upon the Attorney General by certified mail, return receipt requested. In interpreting the above provision, the Court of Appeals has noted that "statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). Indeed, the Court is deprived of subject matter jurisdiction, and the claim must be dismissed, when the mail requirements are not met (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]).

Here, the claim was received by the Attorney General's office without a request for a return receipt. "Since this defect in service is jurisdictional, [there is] no merit to claimant's contention that defendant is estopped from claiming a lack of jurisdiction because the state's prison officials, who control his mail, failed to effectuate the certified mailing that he requested" (Rodriguez v State of New York, 307 AD2d 657 [3d Dept 2003]). A lack of subject matter jurisdiction cannot be overlooked or remedied by either waiver or estoppel (see Finnerty v New York State Thruway Auth., supra, at 723; Pagano v New York State Thruway Auth., 235 AD2d 408, lv denied 90 NY2d 804 [1997]). Thus, the claim must be dismissed. Claimant may, of course, seek permission to file and serve a late claim (see Rodriguez v State of New York, supra).
Accordingly, defendant's motion M-70666 is granted.



February 15, 2006
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


Papers Considered:


1. Notice of Motion filed September 8, 2005;

2. Affirmation of Paul F. Cagino dated September 1, 2005; Exhibits A-B annexed;

3. Affidavit of Arthur Brodie sworn to September 14, 2005; Exhibits A-B annexed.



[1]Claimant previously served a notice of intention on November 7, 2002.