New York State Court of Claims

New York State Court of Claims

MARTIN v. THE STATE OF NEW YORK, #2007-015-154, Claim No. 112808, Motion Nos. M-72492, M-72560


Defendant's motion to dismiss claim for improper service was granted. Cross-motion to amend claim was denied as moot.

Case Information

1 1.The caption is amended sua sponte to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption is amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-72492, M-72560
Cross-motion number(s):

Claimant’s attorney:
Vincent Martin, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Kathleen M. Arnold, Esquire and Paul F. Cagino, Esquire, Assistant Attorneys General
Third-party defendant’s attorney:

Signature date:
February 26, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves to dismiss this claim (M-72492) pursuant to CPLR 3211(a)(2) and (8) on the grounds that the Court lacks jurisdiction to hear the claim due to improper service and failure to comply with the pleading requirements of Court of Claims Act § 11(b). Claimant, an inmate at Clinton Correctional Facility, moves to amend his claim (M-72560) in order to set forth in detail the items of personal property which form the basis for this bailment claim. Claimant alleges that his personal property was lost or stolen sometime during the period of January 20, 2006 through January 24, 2006 upon his transfer to the special housing unit at Washington Correctional Facility. The claim was filed on September 27, 2006 and served, according to the claimant's affidavit of service, on September 23, 2006 "by depositing a true copy of ...[the claim] in an official depository under the exclusive care and custody of the Department of Correctional Services of New York". In support of its dismissal motion, the defendant submitted a copy of the envelope in which the claim was mailed which reflects postage in the amount of .63 cents and bears no indicia of service by certified mail, return receipt requested.

Court of Claims Act § 11(a)(i) requires that the claim be filed with the clerk of the court and that “a copy shall be served upon the attorney general within the times hereinbefore provided for filing with the clerk of the court either personally or by certified mail, return receipt requested...." or by facsimile transmission or electronic means if authorized. Service of the claim by ordinary mail service is therefore improper (see Govan v State of New York, 301 AD2d 757 [2003]; Turley v State of New York, 279 AD2d 819 [2001]). Defendant having established that service of the claim was not accomplished in accordance with the requirements of Court of Claims Act § 11(a), the Court lacks jurisdiction and the claim must be dismissed.

Accordingly, the defendant's motion to dismiss the claim for improper service is granted.

As the result of this decision, claimant's motion to amend his claim is denied.

February 26, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion to dismiss dated November 3, 2006;
  2. Affirmation of Kathleen M. Arnold dated November 3, 2006 with exhibit;
  3. Notice of motion for amending claim filed November 20, 2006;
  4. Affidavit of Vincent Martin sworn to November 5, 2006 with exhibits;
  5. Affirmation of Paul F. Cagino dated December 1, 2006 with exhibit.