New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2007-015-240, Claim No. 113649, Motion No. M-73737


Synopsis


Claim was dismissed for improper service and failure to meet the pleading requirements of Court of Claims Act § 11 (b).

Case Information

UID:
2007-015-240
Claimant(s):
ARGIE BROWN
Claimant short name:
BROWN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113649
Motion number(s):
M-73737
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Argie Brown, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 18, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves to dismiss this claim 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). The claim is based on the contention that "THE EDUCATION DEPARTMENT IN ALBANY NEW YORK HAVE ONCE AGAIN PLACE AN OFFSET AGAINST MY INCOME TAXES" [sic] . The date of accrual is neither alleged nor discernible from the claim and the total sum claimed is not set forth therein. The claim was filed on May 3, 2007 without an accompanying affidavit of service.

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 .41 cents and contains no indicia that service was accomplished 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 . . . either personally or by certified mail, return receipt requested. . .". Service of the claim by ordinary mail service is therefore improper (Fulton v State of New York, 35 AD3d 977 (2006), lv denied 8 NY3d 809 (2007); Govan v State of New York, 301 AD2d 757, lv denied 99 NY2d 510 [2003]; Thompson v State of New York, 286 AD2d 831 [2001]). Defendant having established that the claim was not served in accordance with the requirements of Court of Claims Act § 11(a) (i), the Court lacks jurisdiction to hear the claim.

In addition, the claim fails to meet the pleading requirements of Court of Claims Act § 11 (b), which requires that the claim state the "time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and . . . the total sum claimed". The claim here fails to allege the time when the claim arose and the total sum claimed. As the requirements in § 11 (b) are " 'substantive conditions upon the State's waiver of sovereign immunity' ", the failure to satisfy any of the conditions is a jurisdictional defect requiring dismissal (Kolnacki v State of New York, 8 NY3d 277, 280 [2007], quoting Lepkowski v State of New York, 1 NY3d 201, 207 [2003].

For the foregoing reasons, the defendant's motion to dismiss the claim is granted and the claim is dismissed.



October 18, 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 July 16, 2007;
  2. Affirmation of Michael T. Krenrich dated July 16, 2007 with exhibit.