New York State Court of Claims

New York State Court of Claims

KELLY v. THE STATE OF NEW YORK, #2008-009-031, Claim No. 115198, Motion No. M-75240


Synopsis


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

Case Information

UID:
2008-009-031
Claimant(s):
JOHN R. KELLY
Claimant short name:
KELLY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115198
Motion number(s):
M-75240
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
JOHN R. KELLY, Pro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney General
Of Counsel.
Third-party defendant’s attorney:

Signature date:
November 13, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking an order dismissing this bailment claim based upon improper service.

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


“Answer” to Motion, Affirmation of Claimant, with Attachments 3,4

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 dismissed.

Accordingly, it is

ORDERED, that Motion No. M-75240 is hereby GRANTED; and it is further

ORDERED, that Claim No. 115198 is hereby DISMISSED.


November 13, 2008
Syracuse, New York

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