New York State Court of Claims

New York State Court of Claims

VASQUEZ v. THE STATE OF NEW YORK, #2007-045-002, Claim No. 112917, Motion No. M-72581


Synopsis



Case Information

UID:
2007-045-002
Claimant(s):
LUIS VASQUEZ
1 1.The caption has been amended, sua sponte, to reflect the State of New York as the properly named defendant.
Claimant short name:
VASQUEZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended, sua sponte, to reflect the State of New York as the properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112917
Motion number(s):
M-72581
Cross-motion number(s):

Judge:
GINA M. LOPEZ-SUMMA
Claimant’s attorney:
Luis Vasquez, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 11, 2007
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were reviewed by the Court on this motion: Defendant’s Notice of Motion to Dismiss, Defendant’s Affirmation with annexed Exhibit A and the filed claim.







For the reasons set forth below, defendant’s pre-answer motion to dismiss the claim as improperly served is granted. Luis Vasquez, the claimant herein, has not submitted any opposition to defendant’s motion.

Claimant filed a claim on October 23, 2006 in which he alleged that defendant, the State of New York, through its agents, negligently lost his property while he was incarcerated at the Adirondack Correctional Facility.

Defendant seeks dismissal of the claim based upon claimant’s failure to properly serve the claim either by personal service or by certified mail, return receipt requested. Defendant argues, that as a result, the Court lacks jurisdiction over the claim. In support, defendant submitted a photocopy of the envelope in which the claim was served (see Def Exh A). The envelope shows postage in the amount of $1.17, however, no certified mail or return receipt requested indicia were affixed.

Court of Claims Act § 11(a) provides that a copy of the claim “... 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 filing and service requirements contained in the Court of Claims Act § 11 are jurisdictional in nature and therefore must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721 [1989]). In this case, the requirement that defendant be served in accordance with Court of Claims Act § 11 was not met as the claim was served by ordinary mail. As “the use of ordinary mail to serve the claim upon the Attorney-General is insufficient to acquire jurisdiction over the State” (Turley v State of New York, 279 AD2d 819 [3d Dept 2001]), the Court is deprived of jurisdiction.

Based upon defendant’s motion and the absence of any contrary evidence by the claimant, the motion is granted and the claim is hereby dismissed. It is thus unnecessary to reach the remaining portions of defendant’s motion.


April 11, 2007
Hauppauge, New York

HON. GINA M. LOPEZ-SUMMA
Judge of the Court of Claims