New York State Court of Claims

New York State Court of Claims

CHESTNUT v. THE STATE OF NEW YORK, #2007-015-558, Claim No. 110499


Synopsis


Defendant's motion to dismiss for the failure to serve the claim was granted.

Case Information

UID:
2007-015-558
Claimant(s):
MICHAEL CHESTNUT
1 1.Although the name of the defendant was not stated in the original claim, after a review of the claim the Court sua sponte amends the caption to reflect the properly named defendant.
Claimant short name:
CHESTNUT
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
Although the name of the defendant was not stated in the original claim, after a review of the claim the Court sua sponte amends the caption to reflect the properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110499
Motion number(s):

Cross-motion number(s):

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

Signature date:
May 24, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The parties appeared for the trial of this action on March 21, 2007. At trial the defendant moved to dismiss for failure to serve the claim in accordance with Court of Claims Act § 11. Decision on the motion was reserved and the trial was adjourned following the receipt of evidence from both parties regarding service of the claim.

The claim dated February 4, 2005 asserts a cause of action which allegedly accrued on December 27, 2004[2]. It was filed in the Court of Claims on February 14, 2005 but no affidavit of service of the claim was attached.

In support of its motion to dismiss, the defendant submitted an affidavit from Janet A. Barringer, Senior Clerk at the Albany Office of the Attorney General, which was received in evidence as defendant's Exhibit A together with the exhibits attached thereto. According to Ms. Barringer the claimant served a notice of intention to file a claim upon the Attorney General by regular mail on January 25, 2005. The notice of intention to file a claim is annexed to the Barringer affidavit as Exhibit B and appears to involve the same general subject matter as is addressed in the filed claim. A second notice of intention to file a claim, this one served by certified mail, return receipt requested, was served upon the Attorney General on February 3, 2005 (Exhibit C). The second notice of intention also arguably relates to the same facts and circumstances as set forth in the claim. Finally, on February 28, 2005 the Attorney General received a copy of correspondence addressed to the claimant from the New York State Court of Claims acknowledging its receipt of a claim on February 14, 2005[3].

In opposition to the defendant's motion to dismiss this case, the claimant submitted a certified mail receipt (Exhibit 1) and a return receipt from the Attorney General (Exhibit 2). These documents establish that an item was sent to the Attorney General on March 4, 2005 by certified mail, return receipt requested and received on March 7, 2005.

Court of Claims Act § 11(a) provides, in relevant part, that a copy of the claim "shall be served upon the attorney general...either personally or by certified mail, return receipt requested...". This requirement is jurisdictional in nature and, as such, must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722 [1989]; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687 [2000]).

No affidavit of service or any other proof has been submitted to establish that the claim filed on February 14, 2005 was served on the Attorney General. The affidavit from Ms. Barringer establishes that a notice of intention to file a different claim (not involving the facts at issue in the claim and stating an accrual date of December 18, 2004) was served by certified mail and received on March 7, 2005. This coincides with claimant's Exhibits 1 and 2 indicating the receipt of certified mail by the Attorney General on March 7, 2005.

Although it appears the claimant properly served his notice of intention to file the subject claim, which was received by the Attorney General on February 3, 2005, claimant failed to comply with the requirements of Court of Claims Act § 11 with respect to service of the claim itself. Claimant's failure to effect service of the claim requires that it be dismissed.

Accordingly, for the reasons set forth above, the claim is dismissed.


May 24, 2007
Saratoga Springs, New York

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




[2].The claim is difficult to decipher. It states the following: "On 12-27-04 I got a tehr II ticket for not given up my lunch tray and I was placed on the Supt diet on 12-28-04 till 1-4-05 and was keeplock and loss of every thing for 15 days and thay cant punish a person with more then one penalty[.] You have to get a tear III to place you on the Supt diet. At the tear hearing Lt. Armstrong fond me gilty for the same ticket and gave me 15 days keeplock that's Double Jepaty".
[3].While the Attorney General received a third notice of intention to file a claim from the claimant on March 7, 2005, that document does not appear to relate to matters addressed in the claim.