The following papers were read on defendant’s motion for an order of
1. Notice of Motion and Supporting Affirmation of Kathleen Arnold, Esq., AAG
with annexed Exhibits A-B;
Filed Papers: Claim; Answer.
Claimant, Mark Ray (claimant), an inmate confined at Franklin Correctional
Facility during the relevant time period, served this claim on April 29, 2004
alleging that certain items of his personal property were lost when he was
packed up for the facility’s Special Housing Unit. Defendant, State of
New York (defendant), now moves to dismiss the claim pursuant to CPLR 3211 (a)
(2) and (8) alleging that the court lacks jurisdiction over the claim and
defendant because the claim was served by regular/priority mail rather than by
personal service, certified mail, return receipt requested, or other authorized
means, as required by Court of Claims Act § 11 (Affirmation of Kathleen
Arnold, Esq., AAG,. ¶¶ 5-9, dated June 23,
In support of its motion to dismiss the claim as improperly served, counsel for
Defendant has submitted a photocopy of the envelope in which the claim was
received (Affirmation of Kathleen Arnold, Esq., AAG, Exhibit A), establishing
that it was sent by regular, priority mail, rather than by certified mail,
return receipt requested as required by section 11(a) of the Court of Claims
Act. Claimant has not responded to the motion.
Failure to comply with the time or manner of service requirements contained in
sections 10 and 11 of the Court of Claims Act is a fatal jurisdictional defect
and, if properly raised by defendant in its answer or in a pre-answer motion,
deprives this Court of the power to hear the claim (Dreger v New York State
Thruway Auth., 81 NY2d 721, 724; Bogel v State of New York, 175 AD2d
493 [3d Dept 1991]). Upon defendant’s uncontested motion papers, it is
evident that this claim was not served in compliance with Court of Claims Act
§ 11. Consequently, defendant’s motion is granted and Claim No.
109281 is hereby dismissed.