New York State Court of Claims

New York State Court of Claims

ARIOLA v. STATE OF NEW YORK, #2008-018-608, Claim No. 114249, Motion No. M-74152


Synopsis


The Court lacks jurisdiction as the claim was improperly served, and as a result, Defendant’s pre-answer motion is granted and the claim is dismissed.

Case Information

UID:
2008-018-608
Claimant(s):
CHRISTOPHER D. ARIOLA
Claimant short name:
ARIOLA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114249
Motion number(s):
M-74152
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
CHRISTOPHER D. ARIOLAPro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: HEATHER R. RUBINSTEIN, ESQUIREAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 4, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant brings a pre-answer motion seeking dismissal of the claim on the grounds that


it was not properly served in accordance with Court of Claims Act §§ 10 and 11 and fails to state a cognizable cause of action. Claimant opposes the motion.

The Court of Claims Act § 11(a)(i) states in relevant part that “[t]he claim shall be filed with the clerk of the court... [and] 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...”

Here claimant served a notice of intention upon the Attorney General by certified mail return receipt requested on August 30, 2007. The claim was served upon the Attorney General by regular mail on September 19, 2007. Regular mail is not an authorized method of service upon the Attorney General under the Court of Claims Act. In Bogel v State of New York, 175 AD2d 493, 494 the claimant served four claims upon the Attorney General by regular mail, the claims were dismissed and the appellate court held that “[s]ervice of claims upon the Attorney General by ordinary mail was insufficient to acquire jurisdiction over the state.” In Diaz v State of New York, 174 Misc 2d 63, 64 [1997], the court held that “service by regular mail does not comply with the requirements of the statute and such service is therefore not adequate to acquire jurisdiction over the state.” Furthermore, “the court does not have the discretion to disregard the defect.” (Diaz v State of New York, 174 Misc 2d 63, 64).

Here, defendant has established that claimant served the claim upon the Attorney General by regular mail. Defendant has attached a copy of the envelope in which the claim was mailed to the Attorney General to its motion papers (Rubinstein Affirmation, Exhibit B). The envelope has no certified mail label and reflects only $.41 postage which is not enough to serve a letter by certified mail, return receipt requested. Thus, the Court lacks jurisdiction over the claim and the claim must be dismissed. The Court need not reach defendant’s other arguments for dismissal.

Defendant’s motion is GRANTED and the claim is DISMISSED.



February 4, 2008
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


Notice of Motion..............................................................................................1


Affirmation of Heather R. Rubinstein, Esquire, Assistant

Attorney General, in support, with exhibits attached thereto..........................2


Unsworn “Reply” of Christopher D. Ariola, dated November 2, 2007...........3