New York State Court of Claims

New York State Court of Claims

KILPATRICK v. STATE OF NEW YORK, #2007-018-561, Claim No. 112949, Motion No. M-72632


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

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
By: Thomas M. Trace, Esquire Senior Attorney
Third-party defendant’s attorney:

Signature date:
March 6, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The Defendant brings a pre-answer motion to dismiss the claim for lack of jurisdiction.

Claimant has not responded to the motion.

Claimant properly served a notice of intention by certified mail, return receipt requested on October 11, 2005. The claim was filed on October 30, 2006, and seeks damages for injuries sustained when a State employee allowed the spraying of a toxic substance in the ovens in the Mess Hall at Riverview Correctional Facility at a time when there were many other workers and food around. Later that day, the ovens were being improperly sprayed again and as Claimant walked by, some of the spray got into his eyes causing him injury. Claimant alleges that he suffers occasional headaches and “stained” vision. The affidavit of service attached to the claim asserts that the claim was served upon the Attorney General on October 24, 2006, by certified mail, return receipt requested.

Defendant argues that the Court lacks personal jurisdiction over Defendant and subject matter jurisdiction over the claim because the Claimant failed to serve a claim in accordance with Court of Claims Act § 11. Defendant argues that the claim was served upon the Attorney General on October 27, 2006, by regular mail, not certified mail, return receipt requested, or by personal service, 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 C. The envelope reflects postage of only 87 cents, and no certified mail label or return receipt requested card.

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 on 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, Defendant has presented adequate proof 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. Despite the affidavit of service, Claimant has not come forward with any proof, such as the return receipt card or the certified mailing label, to establish that the claim was properly served by certified mail, return receipt requested. In fact, Claimant has not responded to this motion. As a result, the Court finds that it lacks jurisdiction over the Defendant.

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

March 6, 2007
Syracuse, New York

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

There was no response from the Claimant.