New York State Court of Claims

New York State Court of Claims

WALKER v. THE STATE OF NEW YORK, #2007-015-254, Claim No. 114053, Motion No. M-73914


Synopsis


Claim was dismissed for improper service.

Case Information

UID:
2007-015-254
Claimant(s):
ALLEN WALKER
Claimant short name:
WALKER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114053
Motion number(s):
M-73914
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Allen Walker, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 11, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves pursuant to CPLR 3211 for dismissal of the claim herein on the ground that the Court lacks subject matter jurisdiction and/or personal jurisdiction over the defendant as the claim was improperly served. The claim filed on August 8, 2007 alleges the claimant was unlawfully confined from June 16, 2005 through August 19, 2005 at Ogdensburg Correctional Facility.

In support of its 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 displays none of the 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 . . . 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 service of the claim was not accomplished in accordance with the requirements of Court of Claims Act § 11(a) (i), the claim is dismissed.

Based on the foregoing, defendant's motion is granted and the claim is dismissed.



December 11, 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 August 31, 2007;
  2. Affirmation of G. Lawrence Dillon dated August 31, 2007 with exhibits;
  3. "Affirmation" of Allen Walker sworn to September 21, 2007 with exhibits.