New York State Court of Claims

New York State Court of Claims

McGee v. STATE OF NEW YORK, #2008-018-633, Claim No. 114982, Motion No. M-74885


Synopsis


Defendant 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. The Court does not address defendant’s other argument for dismissal as based upon the foregoing, the defendant’s motion is GRANTED and claim is hereby DISMISSED.


Case Information

UID:
2008-018-633
Claimant(s):
ROHAN McGEE
1 1.The Court has sua sponte changed the name of the defendant to reflect the State of New York as the only proper defendant.
Claimant short name:
McGee
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The Court has sua sponte changed the name of the defendant to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114982
Motion number(s):
M-74885
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
Rohan McGeePro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 26, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings a pre-answer motion to dismiss the claim for failure to properly serve

the Attorney General and failure to set forth an amount of damages. Claimant has not responded to the motion.

The claim was filed on March 17, 2008, and seeks damages for property allegedly lost by the Department of Correctional Services. No affidavit of service is attached to the claim. Defendant asserts that a copy of the claim was received by the Attorney General on March 19, 2008, by regular mail. Defendant has attached to the motion a copy of the envelope in which the claim was received as Exhibit B. The envelope bears no evidence of mailing by certified mail, return receipt requested.

Defendant argues that the Court lacks personal and subject matter jurisdiction over the claim because the claimant failed to timely serve a claim in accordance with Court of Claims Act §§ 10 and 11.

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 [“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.”]).

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.

The Court does not address defendant’s other argument for dismissal as based upon the foregoing, the defendant’s motion is GRANTED and claim is hereby DISMISSED.



August 26, 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:

1. Notice of Motion.

2. Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney General, in support with exhibits attached thereto.

3. Claimant did not respond to the motion.