New York State Court of Claims

New York State Court of Claims

NASH v. THE STATE OF NEW YORK, #2008-028-504, Claim No. 112124, Motion No. M-71597


Synopsis



Case Information

UID:
2008-028-504
Claimant(s):
NEHEMIAH NASH
Claimant short name:
NASH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112124
Motion number(s):
M-71597
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant’s attorney:
NEHEMIAH NASH, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERAL
BY: Kathleen Arnold, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 11, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on defendant’s motion for an order of dismissal:

1. Notice of Motion and Supporting Affirmation of Kathleen Arnold, Esq., AAG with annexed Exhibit A;


2. Opposition to Defendant’s Motion of Nehemiah Nash, pro se.


Filed papers: Claim


Claimant, Nehemiah Nash (claimant), an inmate proceeding pro se, filed this claim on March 23, 2006 alleging that certain items of his personal property were lost after a transfer from Clinton Correctional Facility to Central New York Psychiatric Center. 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 ordinary mail rather than by personal service or by certified mail, return receipt requested, as required by Court of Claims Act § 11 (a) (Affirmation of Kathleen Arnold, Esq., AAG, ¶¶ 4-6, filed April 20, 2006).[1]

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 rather than by certified mail, return receipt requested as required by section 11(a) of the Court of Claims Act. Claimant’s response paper vaguely alludes, inter alia, that he was under a legal disability, but it does not address the issue of the manner of the claim’s service.

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 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. 112124 is hereby dismissed.



January 11, 2008
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1].Defendant additionally argues that the claim is defective in that it fails to set forth the items of loss or damage as required by Court of Claims Act § 11 (b). Although claimant refers to his items of property as listed in an annexed exhibit, defendant states that the exhibit was not included in the claim that was served upon it. The Court’s copy of the claim does contain an annexed list of items and alleged values. Claimant’s failure to include this information in the claim served upon Defendant, however, would render it defective under Court of Claims Act § 11 (b).