New York State Court of Claims

New York State Court of Claims

MITCHELL v. STATE OF NEW YORK, #2007-018-579, Claim No. 113572, Motion No. M-73409


Synopsis


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

Case Information

UID:
2007-018-579
Claimant(s):
JOSEPH MITCHELL
Claimant short name:
MITCHELL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113572
Motion number(s):
M-73409
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
Joseph MitchellPro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 13, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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

Claimant opposes the motion and asserts that he served the Attorney General.

Defendant argues that the Court lacks personal jurisdiction over the claim because the claimant failed to timely serve a claim in accordance with Court of Claims Act § 11(a)(i). Defendant argues that the claim was served upon the Attorney General on April 9, 2007 by regular mail, not certified mail, return receipt requested, as required by Court of Claims Act § 11(a)(i). Defendant has attached a copy of the envelope in which the claim was sent as Exhibit B. The envelope reflects postage of only three stamps, two of which can be identified as 39 cent stamps,[1] and no certified mail label.
Court of Claims Act § 11 (a)(i) states in relevant part that:
The 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, or, where authorized by rule of the chief administrator of the courts and upon consent of the attorney general, by facsimile transmission or electronic means, as defined in subdivision (f) of rule twenty-one hundred three of the civil practice law and rules, in such manner as may be provided by rule of court...Service by certified mail, return receipt requested, upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general. Personal service upon the attorney general shall be made in the same manner as described in section three hundred seven of the civil practice law and rules.


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 discretion to disregard the defect”]).

Claimant, in his affidavit, affirmatively states that the “[claim] was Sent by Regular Mail.” [sic] (Mitchell affidavit ¶ 4). Accordingly, 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 and the claim must be dismissed.[2]

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










August 13, 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 Joel L. Marmelstein, Esquire, Assistant Attorney

General, in support, with exhibits attached thereto.....................2


Affidavit in Support of Claimant’s Response to Defendant’s

Motion to Dismiss Claim of Joseph Mitchell sworn to

May 31, 2007................................................................................3




[1].Defendant’s counsel affirms that there is only $1.17 postage on the envelope.
[2]. Claimant also asserts that he timely and properly served a notice of intention upon the Attorney General within 90 days of the date of accrual. If accurate, claimant may have options to commence the action again against the State of New York.