New York State Court of Claims

New York State Court of Claims

DESENCLOS v. THE STATE OF NEW YORK, #2007-042-514, Claim No. 113383, Motion No. M-73161


Synopsis


Defendant brings this motion to dismiss the claim for lack of subject matter jurisdiction and/or lack of personal jurisdiction on the grounds that the claim was improperly served. Defendant’s motion is granted and the claim is dismissed.

Case Information

UID:
2007-042-514
Claimant(s):
DEGOT DESENCLOS #05-R-0316
Claimant short name:
DESENCLOS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113383
Motion number(s):
M-73161
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
DEGOT DESENCLOS, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 23, 2007
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant brings a motion before the Court to dismiss the claim for lack of subject matter jurisdiction and/or lack of personal jurisdiction on the grounds that the claim was improperly served. The following papers were considered by the Court:
1. Notice of Motion, filed March 29, 2007
2. Affirmation of G. Lawrence Dillon, Esq., dated March 29, 2006
3. Exhibits A - B, annexed to the moving papers
4. Undated letter from pro se claimant, received at the Office of the Chief Clerk of the Court of Claims on April 12, 2007
5. Undated Claim, and attachments thereto, including poor person application, sworn to April 9, 2007

__________________________________________


This matter comes before the court on defendant’s motion to dismiss the claim for lack of subject matter jurisdiction and/or lack of personal jurisdiction on the grounds that the claim was improperly served.

The underlying claim seeks to recover damages for lost property claims that accrued while claimant was an inmate at the Mohawk Correctional Facility. The property losses appear to arise out of two separate incidents. The claim asserts that in March 2006 claimant was rushed to University Hospital, with his possessions left at the Gouverneur Correctional Facility. In April 2006 he was transferred from the hospital directly to Mohawk Correctional Facility. Upon arrival, he said that he informed a property officer that numerous items of property were missing.
On July 7, 2006 claimant was admitted to “Syracuse University Hospital” [sic]. Claimant says that he returned to defendant’s Walsh Medical Unit on July 24, 2006 and he received his property on July 26, 2006 at which time he discovered that several items were missing. On July 27, 2006 claimant alleges that he spoke with the porter, who went back to his old room and found some items, but some items remained missing. The claim does not establish that claimant exhausted his administrative remedies (see Court of Claims Act § 10 [9]; 7 NYCRR Part 1700); but as that issue was not raised, it is deemed as waived on this motion.
Defendant moves to dismiss pursuant to CPLR § 3211 (a) (8) on the grounds that the court is without personal jurisdiction over the defendant, as the claim was not properly served. Defense counsel states, and claimant does not dispute, that the claim was not served until on or about February 28, 2007 and at that time was served via regular mail, rather than certified mail, return receipt requested. Exhibits supporting this assertion are attached to the moving papers.
Court of Claims Act § 11 (a) (i) specifically provides that:
[t]he claim shall be filed with the clerk of the court; and, except in the case of a claim for the appropriation by the state of lands, 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 . . . .
The law is well established that the “requirements of . . . Section 11 of the Court of Claims Act are jurisdictional in nature and, therefore, must be strictly construed” (Finnerty v New York State Thruway Authority, 75 NY2d 721, 722, citing with favor, Buckles v State of New York, 221 NY 418, 423 - 424). In Finnerty, where the Attorney General had not been properly served under CCA § 11, the court found that the failure to properly serve under Section 11 resulted “not in a failure of personal jurisdiction . . . but in a failure of subject matter jurisdiction which may not be waived.” (Finnerty v New York State Thruway Authority, 75 NY2d 721, 723). “[T]he use of ordinary mail to serve the claim upon the Attorney-General is insufficient to acquire jurisdiction over the State” (Philippe v State of New York, 248 AD2d 827 [3rd Dept 1998]).
In a letter submitted to the Chief Clerk of the Court of Claims, claimant acknowledges that “I failed to serve the claim with a certified mail, return receipt requested”. [1]
In light of the foregoing, the claim is dismissed for lack of jurisdiction.
July 23, 2007
Utica, New York
HON. NORMAN I. SIEGEL
Judge of the Court of Claims

[1]. This letter also seeks to “resubmit” a claim for the same property loss and damages. It is the Court’s understanding that the Clerk’s Office has treated this “resubmission” as a new claim (with a new claim number). For this reason, the Court declines to address either the timeliness or merits of the “new” claim .