New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2008-032-124, Claim No. 116147-A, Motion Nos. M-76303, M-76304, M-76468, CM-76354


Synopsis



Case Information

UID:
2008-032-124
Claimant(s):
JAMES PETTUS
Claimant short name:
PETTUS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116147-A
Motion number(s):
M-76303, M-76304, M-76468
Cross-motion number(s):
CM-76354
Judge:
JUDITH A. HARD
Claimant’s attorney:
James Pettus, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Roberto Barbosa, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
June 8, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, James Pettus, an inmate proceeding pro se, filed this claim on December 1, 2008 alleging that medical personnel at Southport Correctional Facility improperly discontinued his prescription pain medication. Presently he has three motions pending in this claim. Motion No. M-76303 requests an order of this Court allowing him to serve the claim by regular mail or for an extension of time to file the claim based on allegations that the Department of Correctional Services (DOCS) is denying his request to send the claim by certified mail, return receipt requested.[1] Motion No. M-76304 requests an order consolidating this claim with earlier filed Claim No. 112084. Lastly, Motion No. M-76468 seeks summary judgment and to have the Court serve a subpoena upon a physician employed at Great Meadow Correctional Facility.

Defendant State of New York cross-moves for dismissal of Claim No. 116147-A on the basis that this claim was served by regular mail as opposed to by certified mail, return receipt requested as required by Court of Claims Act § 11 (a). Evidencing this allegation is a copy of the claim and the envelope received by the Attorney General containing the claim. Because the State’s motion is dispositive, the Court addresses it first.

Court of Claims Act § 11 (a) provides, in relevant part, that a copy of a claim must be served on the Attorney General "either personally or by certified mail, return receipt requested.” This requirement, unless waived (see Court of Claims Act § 11 [c]), is jurisdictional in nature and, as such, must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722 [1989]; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687 [3d Dept 2000]). Consequently, a claimant’s failure to serve the Attorney General personally or by certified mail, return receipt requested, is a fatal jurisdictional defect and deprives this Court of the power to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Bogel v State of New York, 175 AD2d 493 [3d Dept 1991]).

In its answer, defendant State of New York alleged, as its first affirmative defense, that the claim had been served by regular mail, rather than certified mail, return receipt requested as required by section 11 of the Court of Claims Act. This defense was stated with sufficient particularity to satisfy the pleading requirement and has, therefore, not been waived (Court of Claims Act § 11 [c]). Claimant, other than requesting an order allowing him to serve by regular mail, which is beyond the Court’s power to do, does not dispute that the instant claim was sent to the Attorney General by this unauthorized method of service.

Consequently, defendant’s cross-motion (Motion No. CM-76354) must be granted and Claim No.116147-A is hereby dismissed. The remaining motions are denied as moot.




June 8, 2009
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


Papers Considered:

1. Notice of Petition (M-76303), with annexed affidavit of James Pettus, sworn to November 17, 2008, filed December 1, 2008;

2. Affirmation in Opposition (M-76303) of Roberto Barbosa, Esq., AAG, filed March 12, 2009;

3. Notice of Petition (M-76304) with annexed affidavit of James Pettus sworn to November 19, 2008, filed December 1, 2008;

4. Notice of Cross-Motion (CM-76354), filed March 6, 2009;

5. Affirmation in Opposition (M-76304) and in Support of Cross-Motion (CM-76354) of Roberto Barbosa, Esq., AAG, with annexed Exhibits A-C filed March 6, 2009;

6. Affidavit of James Pettus sworn to March 9, 2009, filed March 23, 2009;

7. Notice of Petition (M-76468), with annexed Affidavit of James Pettus and Exhibits, sworn to March 13, 2009, filed March 30, 2009;

8. Affirmation in Opposition (M-76468) of Roberto Barbosa, Esq., AAG, with annexed Exhibits 1-2 and A-C, filed May 21, 2009;

9. Claim 116147-A, filed December 1, 2008.







[1]. It is noted that the rules and regulations of DOCS require that the facility pay for specialized mail handling service, such as certified mail, return receipt requested, when such service is “required by statute, court rule or court order” if the inmate does not have sufficient funds to do so himself (7 NYCRR § 721.3[a][3][ii][a]).