New York State Court of Claims

New York State Court of Claims

FISKE v. THE STATE OF NEW YORK, #2007-015-162, Claim No. 110004, Motion No. M-72648


Synopsis


Claim was dismissed as untimely and improperly served.

Case Information

UID:
2007-015-162
Claimant(s):
ROBERT R. FISKE
1 1.The caption of this claim is amended sua sponte to reflect the only properly named defendant.
Claimant short name:
FISKE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this claim is amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110004
Motion number(s):
M-72648
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Edward Thomas McCormack, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michele M. Walls, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 26, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves for an order pursuant to CPLR 3211(a)(2) and (8) dismissing the claim on the ground that the Court lacks jurisdiction due to improper service of the claim. Claimant alleges in both his "Notice of Claim For Damages" and Claim that the New York State Department of Labor embarked upon a "campaign of terror" in which he was "continuously harassed, his credit and health impaired and his employment and financial well being destroyed over a claim that was settled and paid on September 26, 1997" (see pars. 4 and 5 of the "Notice of Claim For Damages" and Claim, defendant's exhibits A and B respectively). He alleges that the claim is "ongoing and was exacerbated by the May 17, 2004 illegal seizure of the claimant's tax refund" (see par. 3 of the "Notice of Claim For Damages" and Claim, defendant's exhibits A and B respectively). The document denominated as a "Notice of Claim For Damages" was personally served on the Attorney General on June 24, 2004. Thereafter a "Claim" was served upon the Attorney General on October 18, 2004 and filed with the Clerk of the Court on October 25, 2004. 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 37 cents and contains no indicia of service by certified mail, return receipt requested.

In opposition to the defendant's motion, counsel for the claimant contends that the claim filed on October 25, 2004 (served by regular mail) was merely a "follow up containing the same information" as the "Notice of Claim for Damages" previously served upon the Attorney General by personal service on June 24, 2004. Even if the Court were to accept the argument that the document denominated a "Notice of Claim For Damages" was the claim[2], the document denominated the "Claim" was not filed until October 25, 2004, more than 90 days after the claim accrued. Thus, accepting for the sake of argument the claimant's contention that the "Notice of Claim For Damages" was a claim, it was untimely filed (see Court of Claims Act § 10[3], 10[3-b]).

If, on the other hand, the "Notice of Claim For Damages" is considered to be a notice of intention to file a claim, service of the claim was ineffective pursuant to Court of Claims Act § 11(a)(i) which 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]).

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



March 26, 2007
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated December 5, 2006;
  2. Affirmation of Michele M. Walls dated December 5, 2006 with exhibits;
  3. Affirmation of Edward T. McCormack dated December 26, 2006;
  4. Reply affirmation of Michele M. Walls dated December 29, 2006.

  1. [2]The document denominated the "Notice of Claim For Damages" is, in fact, identical to the document denominated as the "Claim", with the exception of the date and caption.