New York State Court of Claims

New York State Court of Claims

ESCALERA v. THE STATE OF NEW YORK, #2007-038-543, Claim No. 112962, Motion No. M-73038


Synopsis



Case Information

UID:
2007-038-543
Claimant(s):
WILLIAM ESCALERA
Claimant short name:
ESCALERA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112962
Motion number(s):
M-73038
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
WILLIAM ESCALERA, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 20, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim was filed on November 1, 2006, and seeks compensation for an alleged loss of property that occurred when claimant, an inmate at Franklin Correctional Facility, was transferred between housing units on or about August 7, 2006. Defendant moves to dismiss the claim on jurisdictional grounds, asserting that the claim was not properly served upon the Attorney General. Claimant has not submitted opposition to the motion. Court of Claims Act § 11 (a) requires that a claim be served upon the Attorney General “personally or by certified mail, return receipt requested.” It is well established that the filing and service requirements of the Court of Claims Act are jurisdictional and must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]). It is also firmly established that service upon the Attorney General by first class mail alone is insufficient to confer the Court with jurisdiction over the State, and that a claim served by first class mail must be dismissed when, as here, the jurisdictional defense is asserted in the answer (see Govan v State of New York, 301 AD2d 757 [3d Dept 2003] lv denied 99 NY2d 510 [2003]; Thompson v State of New York, 286 AD2d 831 [3d Dept 2001]; Turley v State of New York, 279 AD2d 819 [3d Dept 2001] lv denied 96 NY2d 708 [2001]).

Although claimant’s affidavit of service, sworn to on October 3, 2006, states that he served this claim “by certified mail,” defendant has submitted a copy of the envelope in which the claim was received which demonstrates that it was sent by ordinary first class mail and not certified mail, return receipt requested (see Cagino Affirmation, Exhibit A). Thus, because defendant has established that the claim was not served in accordance with the requirements of Court of Claims Act § 11 (a), and because claimant has not opposed the motion to dismiss, the motion will be granted.

Accordingly, Motion No. M-73038 is GRANTED, and Claim # 112962 is DISMISSED.


June 20, 2007
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered
:


(1) Claim # 112962, filed November 1, 2006;

(2) Verified Answer, filed November 13, 2006;

(3) Notice of Motion to Dismiss, dated March 7, 2007;

(4) Affirmation of Paul F. Cagino, AAG, dated March 7, 2007, with exhibits A-B;

(5) Affidavit of Service, sworn to April 7, 2007.