New York State Court of Claims

New York State Court of Claims

LAGARES v. STATE OF NEW YORK, #2006-039-004, Claim No. 111735, Motion No. M-71511


Synopsis



Case Information

UID:
2006-039-004
Claimant(s):
JOSE LAGARES
Claimant short name:
LAGARES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111735
Motion number(s):
M-71511
Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Jose Lagares, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: Michael W. FriedmanAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 1, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate at Franklin Correctional Facility, filed a claim alleging that the State (hereinafter defendant) is liable for acts constituting medical malpractice. Issue was joined, and defendant brought the instant motion seeking to dismiss the claim pursuant to CPLR § 3211 (a) (5) and (8), and Court of Claims Act § 11 (a), on the grounds that the Court lacks personal and subject matter jurisdiction. More specifically, defendant asserts that claimant’s service of the claim by ordinary mail is insufficient to acquire jurisdiction over defendant, and the claim must be dismissed. Claimant opposes the motion and argues, among other things, that defendant waived the grounds presently asserted because it failed to bring a motion to dismiss before issue was joined. Thereafter, the Court (Hard, J.) notified the parties by letter, dated June 22, 2006, that the motion to dismiss would be treated as a motion for summary judgment.

Initially, the Court agrees that defendant’s postanswer motion to dismiss should be treated as a motion for summary judgment. Civil Practice Law and Rules § 3211 (c) empowers the Court, “after adequate notice to the parties,” to treat a motion to dismiss as a motion for summary judgment (see Spilka v Town of Inlet, 8 AD3d 812, 813 [2004]). Here, although the instant motion was not based upon one of the permissible grounds for a postanswer motion to dismiss (see CPLR 3211 [e]), the proof necessary to determine whether the manner of service was proper is complete as “the parties ‘laid bare their proof’” (Franzone v Quinn, 303 AD2d 812, 813 [2003], quoting Singer v Boychuk, 194 AD2d 1049, 1051, lv denied 82 NY2d 657 [1993]). Moreover, the Court (Hard, J.) notified the parties in writing that it would treat defendant’s motion to dismiss as one for summary judgment.

With respect to the merit of defendant’s motion, the Court finds that no genuine issue of material fact exists, and defendant’s motion for summary judgment dismissing the claim based upon insufficient service must be granted. Court of Claims Act § 11 (a) provides, in relevant part, that “a copy [of the claim] shall be served upon the attorney general . . . either personally or by certified mail, return receipt requested, or, where authorized by rule of the chief administrator of the courts and upon consent of the attorney general, by facsimile transmission or electronic means.” It is well settled that “[o]rdinary mail is not one of the methods of service authorized by Court of Claims Act § 11 (a) and, ‘[g]enerally, the use of ordinary mail to serve the claim upon the Attorney-General is insufficient to acquire jurisdiction over the State’” (Turley v State of New York, 279 AD2d 819, 819 [2001], quoting Philippe v State of New York, 248 AD2d 827 [1998]).

In support of the motion, defendant offers, among other things, the supporting affirmation of Assistant Attorney General Michael W. Friedman, wherein he states that the claim was served upon the Attorney General by regular mail, and a photocopy of the envelope used to mail the claim, which does not include a request for return receipt. In opposition, claimant does not dispute that the claim was served upon defendant by ordinary mail, nor does he offer any proof of proper service, as required by Civil Practice Law and Rules § 3211 (e). Thus, defendant’s motion for summary judgment based upon the affirmative defense of lack of personal jurisdiction, as asserted in the answer, must be granted.

Additionally, claimant’s argument that defendant’s motion is not timely and, therefore, defendant waived any objection to the manner of service, is unavailing. Defendant asserted an objection to the manner of service in the answer, thereby preserving the argument (see Turley v State of New York, supra at 819; see also Court of Claims Act § 11 [c]), and subsequently “move[d] for judgment on that ground within sixty days after serving the [answer],” in accordance with Civil Practice Law and Rules § 3211 (e).

Accordingly, it is ORDERED that Motion No. M-71511 is hereby granted and the claim is dismissed.



December 1, 2006
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims



Papers Considered:

  1. Notice of Motion dated April 3, 2006;
  2. Affirmation in Support of Motion, dated April 3, 2006 with exhibits; and
  3. Verified Response to Motion, sworn to on May 16, 2006.