New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2008-028-508, Claim No. 112370, Motion No. M-71935


Synopsis



Case Information

UID:
2008-028-508
Claimant(s):
CARL SMITH
Claimant short name:
SMITH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112370
Motion number(s):
M-71935
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant’s attorney:
CARL SMITH, 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 15, 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;


Filed Papers: Claim.



This claim alleges that while claimant was being moved from Upstate Correctional Facility to Altona Correctional Facility his property was negligently lost by the Department of Correctional Services. 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 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, ¶ 6, filed June 28, 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 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]). Consequently, defendant’s motion is granted and Claim No. 112370 is hereby dismissed.



January 15, 2008
Albany, New York

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




[1].The Court notes that Defendant’s Notice of Motion lists failure of Claimant to exhaust his administrative remedies (see Court of Claims Act § 10 [9]) as the basis of its motion to dismiss. Evidently, this was a clerical error on Defendant’s part.