New York State Court of Claims

New York State Court of Claims

RICHARDSON v. THE STATE OF NEW YORK, #2007-038-548, Claim No. 108078, Motion No. M-73388


Synopsis


Motion to dismiss granted; claim served by ordinary first class mail.

Case Information

UID:
2007-038-548
Claimant(s):
JEFFREY RICHARDSON
Claimant short name:
RICHARDSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108078
Motion number(s):
M-73388
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
Jeffrey Richardson, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michele M. Walls, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 4, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant filed this claim on July 31, 2003, seeking compensation for injuries he suffered as a result of an alleged inmate-on-inmate attack while he was incarcerated at Upstate Correctional Facility. The claim has been scheduled for trial on June 28, 2007, and defendant now moves to dismiss the claim for lack of jurisdiction due to improper service of the claim upon the Attorney General. Claimant has submitted no opposition to the motion. Court of Claims Act § 11 (a) requires, inter alia, that a copy of the claim “shall be served upon the attorney general. . . either personally or by certified mail, return receipt requested. . .” Failure to serve the claim in accordance with section 11 is a jurisdictional defect that requires dismissal of the claim (see Hodge v State of New York, 213 AD2d 766 [3d Dept]; Bogel v State of New York, 175 AD2d 493, 494 [3d Dept 1991]; Smith v State of New York, UID # 2006-009-064, Claim No. 111248, Motion No. M-72094, Midey, J. [Nov. 21, 2006]; Adams v State of New York, UID # 2004-031-169, Claim No. 108345, Motion No. M-69290, Minarik, J. [Dec. 8, 2004]).

Defendant’s jurisdictional argument was raised as an affirmative defense in its answer (Walls Affirmation, Exhibit B [Third Affirmative Defense]). A copy of the envelope in which the claim was mailed to the Attorney General (Walls Affirmation, Exhibit A) is appended to the motion. It bears what appears to be the mark of first class postage and lacks any indicia that it was mailed by certified mail, return receipt requested, as required by Court of Claims Act § 11 (a). As noted above, claimant has not submitted any opposition to the motion that would permit the Court to conclude that it was not served by ordinary first class mail. Accordingly, the Court lacks jurisdiction over defendant, and the claim must be dismissed.

Motion No. M-73388 is GRANTED, and Claim No. 108078 is hereby DISMISSED. The Chief Clerk of the Court is directed to close the file and cancel the trial of the claim.

June 4, 2007
Albany, New York

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



Papers considered
:

(1) Notice of Motion, dated May 14, 2007;

(2) Affirmation of Michele M. Walls, AAG, dated May 14, 2007, with exhibits A-B;

(3) Affidavit of Service, sworn to May 15, 2007.