New York State Court of Claims

New York State Court of Claims

LOUIS v. THE STATE OF NEW YORK, #2007-030-568, Claim No. 113661, Motion No. M-73552


Synopsis


Defendant’s motion to dismiss granted. Although claimant served notice of intention by certified mail, return receipt requested, did not properly serve claim thereafter. Defendant has raised the jurisdictional issue in a timely motion. Court does not have jurisdiction over the defendant. Claimant asks the court to apply CPLR §2001 whereby courts may disregard mistakes if there is no prejudice. Failing to comply with jurisdictional requirements of Court of Claims Act is not a correctable mistake. CPLR §306-b - concerning special proceedings - does not apply with regard to a claim brought in the Court of Claims, that was not properly served, as the provision is in conflict with pertinent provisions of the Court of Claims Act and the case law decided thereunder, and is specific to special proceedings.

Case Information

UID:
2007-030-568
Claimant(s):
JALIL NASIR LOUIS
Claimant short name:
LOUIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113661
Motion number(s):
M-73552
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
JALIL NASIR LOUIS, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
September 19, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on Defendant’s motion to dismiss the


claim:

1,2 Notice of Motion, Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibits

  1. Reply to Motion to Dismiss by Jalil Nasir Louis, Claimant
  1. Filed papers: Claim
Jalil Nasir Louis alleges in his claim that defendant’s agents at Green Haven Correctional Facility negligently allowed an inmate suffering from a contagious disease to prepare and serve food to fellow inmates between August 28, 2005 and September 11, 2005, resulting in claimant’s illness. [Claim number 113661]. More specifically, claimant states that he ingested contaminated food prepared by the sick mess hall worker on or about September 3, 2005, and as a result contracted type 1 shiga-toxin infection and then suffered from severe intestinal pain, diarrhea, fever and weakness. [Ibid. ¶4]. He seeks damages in the amount of $16,000.00. [Ibid. Page 6].

A Notice of Intention to file a claim was served by certified mail, return receipt requested on December 5, 2005. [Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith, Assistant Attorney General, ¶3, Exhibit 1]. The claim itself, however, was served by regular mail upon the Attorney General’s Office on May 4, 2007. [Ibid. ¶4].

Claimant acknowledges that he did not serve the claim by certified mail, return receipt requested. [Reply to Motion to Dismiss by Jalil Nasir Louis, Page 1]. He asks the court to apply Civil Practice Law and Rules §2001 whereby courts may disregard mistakes if there is no prejudice. Unfortunately, failing to comply with the jurisdictional requirements of the Court of Claims Act does not fall under the category of mistake within the meaning of Civil Practice Law and Rules §2001. Additionally, claimant asks that the court apply Civil Practice Law and Rules §306-b concerning special proceedings. Again, this provision does not apply with regard to a claim brought in the Court of Claims, that was not properly served, as it is in conflict[1] with pertinent provisions of the Court of Claims Act and the case law decided thereunder.

More specifically, Court of Claims Act §11(a)(i) provides in part:
“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 . . . ”
Thus, although claimant served a notice of intention to file a claim upon the Attorney General’s Office by one of the methods required by the Act, he has failed to comply with the jurisdictional requirement that the claim itself be served by the same means.[2]

The filing and service requirements contained in Court of Claims Act §§10 and 11 are jurisdictional in nature and must be strictly construed. Dreger v New York State Thruway Auth., 81 NY2d 721(1992); Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 (1989); See also Pagano v New York State Thruway Auth., 235 AD2d 408 (2d Dept 1997), lv denied 90 NY2d 804 (1997). Indeed, the statute provides in pertinent part “ . . . [n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim . . .” Court of Claims Act §10. Service upon the Attorney General by ordinary mail is insufficient to acquire jurisdiction over the State, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. Court of Claims Act §11(c) ; Bogel v State of New York, 175 AD2d 493 (3d Dept 1991).

The Claimant has the burden of establishing proper service [Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept 1989)] by a preponderance of the evidence. See Maldonado v County of Suffolk, 229 AD2d 376 (2d Dept 1996). Regulations require that proof of service be filed with the Chief Clerk within ten (10) days of service on the defendant. 22 NYCRR § 206.5(a).

Here, the Claimant has not established that he served the Claim upon the Attorney General as required, and the Defendant has raised the jurisdictional issue in a timely motion. Thus Claimant has failed to establish, by a fair preponderance of the credible evidence, that the Attorney General was served with a copy of the claim as required by Court of Claims Act §11(a). The Court, therefore, does not have jurisdiction over the Defendant, and Defendant’s motion is hereby granted, and Claim Number 113661 is dismissed.

September 19, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. As to the applicability of the Civil Practice Law and Rules in the Court of Claims, see Court of Claims Act §9(9).

[2].Since the date of accrual is not quite clear from the terms of the notice of intention or the claim, it is not clear whether the notice of intention was timely served. See Court of Claims Act § 10(3).