New York State Court of Claims

New York State Court of Claims

KIRBY v. THE STATE OF NEW YORK, #2006-044-514, Claim No. 109042, Motion No. M-72179


Synopsis


Claimant’s service of the claim by regular mail warrants dismissal of the claim for lack of jurisdiction.

Case Information

UID:
2006-044-514
Claimant(s):
KAI KIRBY
Claimant short name:
KIRBY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109042
Motion number(s):
M-72179
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
KAI KIRBY, pro se
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 12, 2006
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant State of New York (“defendant”) moves to dismiss this claim on the grounds that it was neither properly nor timely filed and served pursuant to the provisions of the Court of Claims Act §§ 10 and 11. Claimant, an inmate proceeding pro se, opposes the motion.

Claimant alleges that while he was incarcerated at Elmira Correctional Facility, he was the victim of an assault on June 15, 2003 by another inmate. He contends that defendant is liable for his injuries due to its negligent supervision of the area in the facility where he was attacked.

Court of Claims Act § 10 (3) requires that in an action to recover damages for personal injuries caused by the negligence or unintentional tort of an officer or employee of the State, the claim must be filed with the Clerk of the Court and served upon the Attorney General within ninety days after the accrual of the claim, unless a notice of intention to file a claim is served upon the Attorney General within ninety days after the accrual of such claim. Court of Claims Act § 11 (a) requires that service on the Attorney General's office be made either personally, or by certified mail, return receipt requested.

Claimant served a “Notice of Intention to File A Claim”[1] on the office of the Attorney General on August 14, 2003, via certified mail, return receipt requested. This Notice of Intention was not verified. Claimant subsequently served a claim on the office of the Attorney General on March 12, 2004 by regular mail.[2] In support of its motion, defendant offers a photocopy of the original envelope, which clearly was sent regular mail, with postage of $.60. Claimant's affidavit of service also indicates that the claim was sent regular mail, rather than certified, return receipt requested.

Claimant acknowledges his errors in failing to verify the Notice of Intention and in sending the Claim by regular mail. He asserts that these errors are “insubstantial defects”[3] which must be overlooked by the Court in the interests of justice. He also argues that defendant had an obligation to notify him within 24 hours of the lack of verification, citing CPLR 3022.[4]

Claimant misapprehends the rigid requirements of the law when suing the State, however. “Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed” (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]).

Claimant's failure to verify the Notice of Intention no longer renders it jurisdictionally defective (see Lepkowski v State of New York, 1 NY3d 201 [2003]), and its proper service extended the deadline for filing and serving the claim until June 15, 2005 (see Court of Claims Act § 10 [3]).[5] While claimant timely filed the claim on March 15, 2004, mail service of the claim by any means other than certified mail, return receipt requested, is insufficient to acquire jurisdiction over the State. Defendant's properly pleaded jurisdictional defense of improper service is valid and dispositive of this action (see Court of Claims Act § 11 [c]; Philippe v State of New York, 248 AD2d 827 [1998]).

Defendant’s motion to dismiss is granted and, accordingly, Claim No. 109042 is hereby dismissed.

December 12, 2006
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on defendant’s motion to dismiss:
1) Notice of Motion filed August 23, 2006; Affirmation of Carol A. Cocchiola, AAG, dated August 21, 2006 with annexed Exhibits A through C.

2) Affidavit of Kai Kirby sworn to October 2, 2006, in support [sic] of the motion.


Filed papers: Claim filed March 15, 2004; Verified Answer filed April 9, 2004.



[1]. Defendant's motion to dismiss, Exhibit A.
[2]. Defendant's motion to dismiss, Exhibit B.
[3]. Claimant's Affidavit in Support of Motion [sic] (which was treated by the Court as reply papers), ¶ 4.
[4]. Claimant's Affidavit in Support of Motion [sic], (which was treated by the Court as reply papers), ¶ 2.
[5]. “[T]he recipient of an unverified or defectively verified pleading may treat it as a nullity provided that the recipient ‘with due diligence’ returns the [pleading] with notification of the reasons(s) for deeming the verification defective” (Matter of Miller v Board of Assessors, 91 NY2d 82, 86 [1997]; see Lepkowski v State of New York, 1 NY3d 201, 210 [2003]). Although defendant asserted claimant’s failure to verify the Notice of Intention as an affirmative defense, there is no indication that defendant returned the document with notification of the defect (id.).