New York State Court of Claims

New York State Court of Claims

JONES v. STATE OF NEW YORK, #2008-018-628, Claim No. 114208, Motion No. M-74833


There are no allegations in the claim which could form the basis for the State’s liability, defendant’s motion must be GRANTED and the claim is DISMISSED.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Shannon JonesPro Se
Defendant’s attorney:
Attorney General of the State of New York
By: Heather R. Rubinstein, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 18, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant brings a pre-answer motion to dismiss the claim for lack of jurisdiction and for failure to state a cause of action. Defendant argues that the claim was not properly served pursuant to Court of Claims Act § 11(a)(i), fails to state a viable cause of action in this Court and lacks a proper verification. Claimant submits a letter response to the motion claiming indigence, inability to do legal research and stating that the Wayne County prosecutors do work for the State of New York.

Defendant argues that the Court lacks personal and subject matter jurisdiction over the claim because the claimant failed to properly serve a notice of intention or claim in accordance with Court of Claims Act § 11(a)(i). Defendant argues that the claim was served upon the Attorney General on July 5, 2007, by regular mail, not certified mail, return receipt requested as required by Court of Claims Act § 11(a)(i). Defendant has attached a copy of the envelope in which the claim was sent as Exhibit A. The envelope reflects no certified mail label, the amount of postage paid is not decipherable from defendant’s exhibit.

Court of Claims Act § 11(a)(i) states in relevant part that “the 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...”

It is well-established that the requirements for service on the attorney general are jurisdictional and must be strictly construed (Byrne v State of New York, 104 AD2d 782, 783, lv denied 64 NY2d 607). Service by regular mail is not service sufficient to commence an action in this Court and the Court cannot ignore the service defect (see Bogel v State of New York, 175 AD2d 493, 494 [“[s]ervice of the claims upon the Attorney General by ordinary mail was insufficient to acquire jurisdiction over the State” and the claim was therefore properly dismissed]; Diaz v State of New York, 174 Misc 2d 63, 64 [1997][ the court held that, “[s]ervice 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.”]).

Here, it has been established that claimant served the claim upon the Attorney General by regular mail, which is not a method of service in compliance with Court of Claims Act § 11, thus, the Court lacks jurisdiction over the defendant.

Moreover, given that the claim sets forth allegations of the wrongdoing of an assistant district attorney, sheriff, and certain local judges, claimant has failed to set forth any actionable claim against the State of New York; the only defendant over which this Court has jurisdiction. (Court of Claims Act § 9; see, People ex rel. Fallon v Wright, 150 NY 444 [sheriff, keeper of the jail and police force are local officers, not state officers]; Montesano v State of New York, 11 AD3d 436; Swain v State of New York, 294 AD2d 956; Weiner v State of New York, 273 AD2d 95, 97; Welch v State of New York, 203 AD2d 80, 81 [judicial immunity for judge’s actions performing judicial duties]; Whitmore v State of New York, 55 AD2d 745, lv denied 42 NY2d 810 [State may not be held liable for tortious acts of assistant district attorney]).

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

August 18, 2008
Syracuse, New York

Judge of the Court of Claims

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

1. Notice of Motion

2. Affirmation of Heather R. Rubinstein, Esquire, Assistant Attorney General,

in support, with exhibit attached thereto.

3. Unsworn letter from Shannon Jones, Pro Se, in opposition.