New York State Court of Claims

New York State Court of Claims

ESTRELLA v. STATE OF NEW YORK, #2008-018-634, Claim No. 114966, Motion No. M-75052


Synopsis


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 claim is hereby DISMISSED.


Case Information

UID:
2008-018-634
Claimant(s):
ELIO M. ESTRELLA
1 1.The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant.
Claimant short name:
ESTRELLA
Footnote (claimant name) :

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

Third-party defendant(s):

Claim number(s):
114966
Motion number(s):
M-75052
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
ELIO M. ESTRELLAPro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 3, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant brings a pre-answer motion to dismiss the claim for lack of jurisdiction.

Claimant has not responded to the motion.

The claim[2] was filed on March 12, 2008, and seeks damages for claimant’s personal injuries when he slipped and fell on defendant’s property on December 19, 2007, at Gouverneur Correctional Facility. Claimant also alleges that he did not receive proper medical care after he was taken to the infirmary following his fall.

Defendant argues that the Court lacks personal and subject matter jurisdiction over the claim because the claimant failed to properly serve the claim in accordance with Court of Claims Act § 11(a)(i). Defendant argues that the claim was served upon the Attorney General on March 13, 2008 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 B. The envelope reflects no certified mail label. The amount of postage paid is not decipherable from defendant’s exhibit, although the Assistant Attorney General avers that the envelope reflects only $1.16 postage paid, an amount insufficient for certified mail, return receipt requested.

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...Any notice of intention shall be similarly served upon the attorney general within the times hereinbefore provided for service upon the attorney general...”

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 claims upon the Attorney-General by ordinary mail was insufficient to acquire jurisdiction over the State.” 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 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.

Based upon the foregoing, the defendant’s motion is GRANTED and the claim is hereby DISMISSED.



September 3, 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 G. Lawrence Dillon, Esquire, Assistant Attorney General, in support, with exhibits attached thereto.

3. Claimant has not responded to the motion.


[2].Attached to both the filed claim and defendant’s Exhibit A is a notice of intention to file claim. Claimant, it seems, filed and served both the claim and notice of intention together.