Pre-Answer Motion to Dismiss Claim, Affirmation, with Exhibits 1,2
“Answer” to Motion, Affirmation of Claimant, with
As set forth in Court of Claims Act § 10(9), the claim of an inmate in the
custody of the Department of Correctional Services seeking damages for loss of
personal property must be filed and served within 120 days after the date on
which the inmate has exhausted his or her administrative remedies. The service
and filing requirements of the Court of Claims Act are applicable to these
inmate bailment claims.
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 although claimant served his claim by mail on June 13, 2008, it was not
sent by certified mail, return receipt requested, and therefore 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 $.43 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 sent by certified mail, return receipt requested, as required by
statute. Additionally, as set forth in his response papers to this motion (see
Items 3,4), claimant has acknowledged that he failed to serve his claim upon the
Attorney General by certified mail, return receipt requested.
Based on these undisputed submissions, therefore, the Court must find that
defendant has established that the claimant failed to serve his claim upon the
Attorney General by certified mail, return receipt requested, and that his
service of the claim upon the Attorney General by regular, first class mail, is
not a method of service authorized by Court of Claims Act § 11. As a
result, this Court lacks jurisdiction over the claim, and it must therefore be
Accordingly, it is
ORDERED, that Motion No. M-75240 is hereby GRANTED; and it is further
ORDERED, that Claim No. 115198 is hereby DISMISSED.