New York State Court of Claims

New York State Court of Claims

DOUGLAS v. THE STATE OF NEW YORK, #2008-009-020, Claim No. 115187, Motion No. M-75021


Synopsis


Defendant’s motion to dismiss based upon improper service was granted.

Case Information

UID:
2008-009-020
Claimant(s):
LA-SHON WALTER DOUGLAS, SR.
Claimant short name:
DOUGLAS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115187
Motion number(s):
M-75021
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
LA-SHON WALTER DOUGLAS, SR., Pro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
July 31, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking an order dismissing the claim based upon improper service as well as for a failure of the claimant to specify in his claim the items of damages and the total sum claimed.

The following papers were considered by the Court in connection with this motion:
Pre-Answer Notice of Motion, Affirmation, with Exhibits 1,2

Claimant has not submitted any papers in opposition, nor has he contacted the Court in any manner whatsoever with regard to this motion.

Pursuant to Court of Claims Act § 11(a), a claim must be served upon the Attorney General either personally or by certified mail, return receipt requested (Hodge v State of New York, 213 AD2d 766). Such provisions are jurisdictional prerequisites to the institution and maintenance of a claim, and as such must be strictly construed (Greenspan Bros. v State of New York, 122 AD2d 249). Service of a claim by ordinary, first class mail is not one of the methods of service authorized by Court of Claims Act § 11(a) (Turley v State of New York, 279 AD2d 819), and service of a claim which is not made in accordance with the provisions of § 11 is insufficient to confer jurisdiction over the State (Hodge v State of New York, supra; Philippe v State of New York, 248 AD2d 827).

In his supporting affirmation (see Item 2), defendant’s attorney contends that claimant served his claim by mail on April 22, 2008, but that it was not sent by certified mail, return receipt requested, and that such service is jurisdictionally defective. Defendant has attached a copy of the envelope in which the claim was mailed (see Exhibit B to Items 1,2), on which postage in the amount of $1.14 is indicated. This amount of postage is less than the amount required for certified mail, return receipt requested service. Additionally, there are no other markings on the envelope to indicate that the claim was served by certified mail, return receipt requested, as required by statute. Based on these submissions, the Court finds that defendant has established that claimant served his claim upon the Attorney General by regular, first class mail, which is not a method of service authorized by Court of Claims Act § 11. Accordingly, this Court lacks jurisdiction and the claim must be dismissed.

Having determined that this claim was improperly served resulting in a jurisdictional defect, there is no need for this Court to address defendant’s remaining contention that the claim fails to adequately set forth an amount of damages.

Based on the foregoing, therefore, it is

ORDERED, that Motion No. M-75021 is hereby GRANTED; and it is further

ORDERED, that Claim No. 115187 is hereby DISMISSED.


July 31, 2008
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims