New York State Court of Claims

New York State Court of Claims

HARRIS v. THE STATE OF NEW YORK, #2007-037-022, Claim No. 112776, Motion Nos. M-72652, CM-72675


Synopsis


Claim served by regular mail was dismissed as being jurisdictionally defective.

Case Information

UID:
2007-037-022
Claimant(s):
GEORGE HARRIS, 01-A-6361
Claimant short name:
HARRIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112776
Motion number(s):
M-72652
Cross-motion number(s):
CM-72675
Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
George Harris, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Paul Volcy, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 1, 2007
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following were read and considered with respect to Claimant’s motion (M-72652) to


dismiss Defendant’s affirmative defenses and Defendant’s cross-motion (CM-72675) for summary


judgment:

1. Claimant’s notice of motion and supporting affidavit of pro se claimant, George

Harris, sworn to November 27, 2006, with annexed Exhibits A-B;

2. Defendant’s notice of cross-motion and affirmation of Assistant Attorney General

Paul Volcy dated December 14, 2006, in opposition to Claimant’s motion and in support of Defendant’s cross-motion, with annexed Exhibits A-H;

3. Claimant’s affidavit sworn to December 20, 2006, in response to Defendant’s cross-

motion, with annexed Exhibits A-H;

4. Defendant’s amended notice of cross-motion and affirmation of Assistant Attorney

General Paul Volcy dated March 9, 2007, with annexed Exhibits A-D;

5. Claimant’s affidavit sworn to March 20, 2007, in response/opposition to Defendant’s

amended cross-motion, with annexed Exhibits A-C.


Filed papers: Claim filed September 18, 2006; Answer filed November 3, 2006.

This is a claim for loss of personal property consisting of an AM/FM radio with cassette player, Sony headphones and eight (8) cassettes, which allegedly occurred while the pro se Claimant was incarcerated at Collins Correctional Facility (Collins).

There are presently two motions pending before the Court. The first is Claimant’s motion to dismiss most of the affirmative defenses contained in Defendant’s answer. The second motion is Defendant’s cross-motion for summary judgment. Because a resolution of Defendant’s cross-motion could obviate the need to address Claimant’s motion, Defendant’s cross-motion for summary judgment will be addressed first.

In its cross-motion for summary judgment, Defendant acknowledges that Claimant served a notice of intention to file a claim upon the Attorney General by certified mail, return receipt requested. Thereafter, on September 21, 2006, Claimant served upon the Attorney General a claim by regular mail. Defendant moves for summary judgment dismissing the claim on the ground, inter alia, that the Court does not have jurisdiction over the claim because it was improperly served. This defense was appropriately raised with sufficient particularity in Defendant’s answer as required by § 11 (c) of the Court of Claims Act.

Court of Claims Act § 11 (a) requires that service upon the Attorney General be accomplished personally or by certified mail, return receipt requested (see Hodge v State of New York, 213 AD2d 766 [1995]; appeal dismissed 87 NY2d 968 [1996]). The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]; Martinez v State of New York, 282 AD2d 580 [2001]; lv denied 96 NY2d 720 [2001]). “[N]otice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court” (Feinstein v Bergner, 48 NY2d 234, 241 [1979]). The Court is without discretion to waive these requirements. Thus, the use of ordinary mail to serve the Attorney General is insufficient to confer jurisdiction (Bogel v State of New York, 175 AD2d 493 [1991]).

Claimant argues that the Attorney General was properly served and attaches to his motion papers a copy of an inmate disbursement or refund request form dated July 31, 2006, indicating that Claimant requested that $4.25 be deducted from his account in order to serve the Attorney General by certified mail, return receipt requested. Also annexed to Claimant’s motion papers are copies of the green card evidencing the service of something upon the Attorney General on August 4, 2006 by certified mail, return receipt requested, at a cost of $4.64 (see Claimant’s Exhibit A). On the top of Claimant’s Exhibit A is hand-written “ ‘Notice’ To Attorney General,” presumably indicating that the document served upon the Attorney General on August 4, 2006 was Claimant’s notice of intention to file a claim which Defendant admitted was served by certified mail, return receipt requested. Unfortunately, § 10 (6) of the Court of Claims Act contains no provision authorizing the use of a notice of intention to extend the time to file and serve a loss of personal property claim. Accordingly, Claimant’s notice of intention must be considered a nullity (Smith v State of New York, Ct Cl, December 5, 2005, Midey, Jr., J., Claim No. 111125, Motion Nos. M-70601, M-70602, M-70603, UID # 2005-009-061; Cepeda v State of New York, Ct Cl, October 22, 2001, Midey, Jr., J., Claim No. 104717, Motion No. M-64015, UID # 2001-009-049).[1] But even if a notice of intention were permitted in a loss of personal property action, it has been consistently held that BOTH the notice of intention and the claim must be served personally or by certified mail, return receipt requested (Hodge v State of New York, supra).

Attached to the claim is an affidavit of service (see Defendant’s Exhibit A). While this affidavit is undated and does not indicate the date upon which the claim was mailed, the affidavit was sworn to September 11, 2006, well after the Attorney General was served by certified mail, return receipt requested, with what is assumed was Claimant’s notice of intention. Also attached to Defendant’s motion papers as Exhibit B is a copy of the envelope in which the claim was mailed to the Attorney General. The envelope contains none of the indicia of service by certified mail, return receipt requested. Moreover, the $1.35 postage indicated on the envelope is insufficient postage for certified mail, return receipt requested, especially where, as here, it is known from Claimant’s Exhibit A that service of the notice of intention upon the Attorney General by certified mail, return receipt requested cost $4.64. The Court concludes that the claim was improperly served by regular mail and not served personally or by certified mail, return receipt requested, as required by § 11 (a) of the Court of Claims Act. The claim is, thus, jurisdictionally defective and must be dismissed.

Finally, Claimant argues that Defendant’s answer was served untimely and that Defendant is precluded from raising the jurisdictional defense of improper service as it was not raised in a motion served and filed within sixty (60) days after service of the answer. Under the Uniform Rules for the Court of Claims § 206.7, a responsive pleading, such as an answer, must be served within forty (40) days of service of the pleading to which it responds. The claim was served on September 21, 2006, the day it was received by Defendant (Court of Claims Act § 11 [a]). The answer was served on October 31, 2006, the day it was mailed by Defendant (CPLR 2103 [b] [2]). The answer was, thus, timely served (see Davidson v State of New York, Ct Cl, June 17, 2002, McNamara, J., Claim No. 105494, Motion No. M-64857, UID # 2002-011-553).

Rule 3211 (e) of the CPLR provides in pertinent part that:
“[A]n objection that the summons and complaint, summons with notice, or notice of petition and petition was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship.”

Claimant’s argument that Defendant waived its right to move to dismiss the claim for improper service because it was not raised for the first time within sixty days of service of the answer pursuant to CPLR 3211 (e) is misplaced. In amending 3211 (e) in 1996, the Legislature listed the summons and complaint, summons with notice, and notice of petition and petition as being within the ambit of the amendment. Because the Legislature did not choose to include within its statutory language the claim, the document which commences an action in the Court of Claims, it has been concluded that the amendment to CPLR 3211 (e) relied upon by Claimant was not intended to apply to claims in the Court of Claims (see Diaz v State of New York, 174 Misc 2d 63 [1997]; LaPlant v State of New York, Ct Cl, February 10, 2004, Collins, J., Claim No. 105815, UID # 2004-015-590).

Because the Court has concluded that the claim was improperly served and, therefore, must be dismissed as being jurisdictionally defective, the Court need not address Claimant’s motion to dismiss the affirmative defenses raised in the answer or the remaining issues raised in Defendant’s motion for summary judgment. Accordingly, it is hereby

ORDERED, that Defendant’s cross-motion CM- 72675 for summary judgment dismissing the claim for improper service is granted, and claim no. 112776 is dismissed; and it is further

ORDERED, that Claimant’s motion no. M-72652 to dismiss affirmative defenses is denied as moot.



May 1, 2007
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[1]. Unreported Court of Claims decisions may be found on the Court’s website at www.nyscourtofclaims.state.ny.us.