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
, appeal dismissed 87 NY2d 968 ). 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
). “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 ). 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 , lv denied 96 NY2d 720 ;
Bogel v State of New York, 175 AD2d 493 ).
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.