New York State Court of Claims

New York State Court of Claims

DELANEY v. THE STATE OF NEW YORK, #2008-037-032, Claim No. 113401, Motion No. CM-74940


Synopsis



Case Information

UID:
2008-037-032
Claimant(s):
CLARENCE DELANEY JR.
Claimant short name:
DELANEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113401
Motion number(s):

Cross-motion number(s):
CM-74940
Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Clarence Delaney Jr., Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Thomas G. RamsayAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 19, 2008
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following were read and considered with respect to Defendant’s cross-motion to dismiss:
  1. Notice of cross-motion and supporting affirmation of Assistant Attorney General
Thomas G. Ramsay dated May 8, 2008, with annexed Exhibits A-C;

  1. Letter from pro se Claimant dated June 6, 2008 in opposition to Defendant’s cross-
motion;

  1. Letter from Assistant Attorney General Thomas G. Ramsay dated July 7, 2008 with
attached Exhibit A to be annexed as part of Exhibit A to Assistant Attorney General Ramsay’s May 8, 2008 affirmation;

  1. Letter from pro se Claimant dated July 20, 2008 in opposition to Defendant’s cross-
motion.[1]


Filed papers: Claim filed March 2, 2007; Answer filed March 26, 2007.

This is an action for loss of personal property which allegedly accrued in February of 2007 while the pro se Claimant was incarcerated in voluntary protective custody at Livingston Correctional Facility Special Housing Unit. The claim was filed on March 2, 2007 and served on the Defendant by regular mail. Defendant brings this cross-motion to dismiss the claim for improper service. Before discussing Defendant’s cross-motion, a brief review of the procedural history of this claim will help to explain its current posture.

When the pro se Claimant filed his claim, he attached to it an application pursuant to CPLR § 1101 (f) for a reduction in the filing fee. This type of application is traditionally handled in Albany. By order dated March 9, 2007, the Honorable Richard E. Sise, Presiding Judge of the Court of Claims, denied Claimant’s application. Then in April of 2008, more than a year after the original application was filed and denied, Claimant filed another application pursuant to CPLR § 1101 (f) for a reduction or waiver of the filing fee. This subsequent application was given motion no. M-74883 and once again assigned to Judge Sise in Albany. Defendant then filed this cross-motion (CM-74940) to dismiss the claim. Because this bailment claim arose out of an incident which allegedly occurred at Livingston Correctional Facility, a facility assigned to this Court, Defendant’s cross-motion and only the cross-motion was assigned to and is currently before this Court.

Defendant brings its cross-motion to dismiss the claim alleging that the claim was improperly served by regular mail. This argument was raised with particularity as an affirmative defense in the Defendant’s answer in compliance with § 11 (c) of the Court of Claims Act. Defendant’s cross-motion was filed on May 12, 2008 and assigned a return date of July 9, 2008. Before the return date, Assistant Attorney General Ramsay noted that the copy of the envelope containing the claim as served on the Defendant and referenced in his May 8, 2008 affirmation as part of Exhibit A had inadvertently been omitted. He requested that the missing page be attached to Exhibit A nunc pro tunc and further requested an adjournment of the cross-motion to allow Claimant time to submit additional opposition to the cross-motion if he deemed it necessary. Assistant Attorney General Ramsay’s requests were granted and the cross-motion was adjourned to August 13, 2008.

Court of Claims Act § 11 (a) requires that service of a claim upon the Attorney General be accomplished by personal service or by certified mail, return receipt requested (see Hodge v State of New York, 213 AD2d 766 [1995], appeal dismissed 87 NY2d 968 [1996]). The filing and service requirements of the Court of Claims Act are jurisdictional and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). “Notice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court.” (Feinstein v Bergner, 48 NY2d 234, 241 [1979]). The Court is without discretion to waive these requirements.

The copy of the envelope now deemed attached to the Defendant’s motion papers as part of Exhibit A bears a single first class postage stamp. It bears no indicia of mailing by certified mail, return receipt requested. The affidavit of service accompanying the claim merely indicates that the claim was to be mailed to the Attorney General’s Office by placing it in “the Institutional Mail Box at Collins Correctional Facility to be mailed via the United States Postal Services.” Unfortunately, service by regular mail, which is not one of the methods of service authorized by § 11 (a) of the Court of Claims Act, results in a lack of jurisdiction (Martinez v State of New York, 282 AD2d 580 [2001], lv denied 96 NY2d 720 [2001]; Bogel v State of New York, 175 AD2d 493 [1991]).

In opposition to Defendant’s motion to dismiss, Claimant argues that his claim is meritorious and that Defendant should not be allowed to add the missing envelope to its motion papers nunc pro tunc. At no time does Claimant even allege that his claim was served by any means other than by ordinary mail. With or without the disputed envelope, Defendant has submitted sufficient proof to establish that the claim was improperly served by ordinary mail. Consequently, the claim is jurisdictionally defective and must be dismissed. Accordingly, it is

ORDERED, that Defendant’s cross-motion CM-74940 to dismiss is granted and claim no. 113401 is hereby dismissed.


August 19, 2008
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[1]. Opposition to a motion or cross-motion is to be in the form of a sworn affidavit. Because neither of pro se Claimant’s letters is in the form of a sworn affidavit, the Court need not consider them. In the interest of justice and judicial economy, however, the Court has read and considered Claimant’s letters.