New York State Court of Claims

New York State Court of Claims

FLETCHER v. STATE OF NEW YORK, #2007-018-556, Claim No. 111918, Motion No. M-72555


Synopsis


Claim is dismissed pursuant to Court of Claims Act § 11.

Case Information

UID:
2007-018-556
Claimant(s):
DEREK FLETCHER
1 1.The caption has been amended by the Court sua sponte to reflect the State of New York as the only proper Defendant.
Claimant short name:
FLETCHER
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended by the Court sua sponte to reflect the State of New York as the only proper Defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111918
Motion number(s):
M-72555
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
DEREK FLETCHERPro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: THOMAS M. TRACE, ESQUIRE
Third-party defendant’s attorney:

Signature date:
February 22, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The Defendant brings a motion to dismiss the claim for lack of jurisdiction. Claimant has

not responded to the motion.

The claim was filed on January 30, 2006, and seeks damages for property allegedly wrongfully destroyed by employees of the Department of Correctional Services. The affidavit of service attached to the claim asserts that the claim was served upon the Attorney General on January 25, 2006, by mail. The method of mailing is not reflected in the affidavit.

Defendant argues that the Court lacks personal and subject matter jurisdiction over the claim because the Claimant failed to timely serve a notice of intention or file and serve a claim in accordance with Court of Claims Act §§ 10 and 11. Further, Defendant asserts that the claim was served upon the Attorney General on January 30, 2006, by regular mail, not certified mail, return receipt requested as required by Court of Claims Act § 11(a). Defendant has attached a copy of the envelope in which the claim was sent as Exhibit B. The envelope reflects postage of only $.63 and no certified mail label.

The Defendant interposed a timely verified answer to the claim. As a first affirmative defense in the answer, Defendant sets forth with sufficient particularity the Claimant’s alleged failure to properly serve the claim in accordance with § 11 of the Court of Claims Act (see Court of Claims Act § 11[c]).

Court of Claims Act § 11(a)(i) states in relevant part that “[t]he claim shall be filed with the clerk of the court; and...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...”

It is well established that the requirements for service upon the Attorney General are jurisdictional and must be strictly construed (Byrne v State of New York, 104 AD2d 782, 783, lv denied 64 NY2d 607). Service by regular mail is not service sufficient to commence an action in this Court and the Court cannot ignore the service defect (see Bogel v State of New York, 175 AD2d 493, 494 [“[s]ervice of the claims upon the Attorney-General by ordinary mail was insufficient to acquire jurisdiction over the State” and the claim was therefore properly dismissed]; Diaz v State of New York, 174 Misc 2d 63, 64 “[s]ervice by regular mail does not comply with the requirements of the statute and such service is therefore not adequate to acquire jurisdiction over the state.” Furthermore, “the court does not have the discretion to disregard the defect”).

Here, it has been established that Claimant served the claim upon the Attorney General by regular mail, which is not a method of service in compliance with Court of Claims Act § 11. Thus, the Court lacks jurisdiction over the Defendant.

Based upon the foregoing, the Defendant’s motion is GRANTED and claim is hereby DISMISSED.



February 22, 2007
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:


Notice of Motion........................................................................................1


Affirmation of Thomas M. Trace, Esquire, in support, with exhibits

attached thereto...............................................................................2


No response to the motion was received from Claimant.