New York State Court of Claims

New York State Court of Claims

SCUTT v. THE PEOPLE OF NEW YORK STATE, #2008-039-065, Claim No. 111661, Motion No. M-74165


Synopsis


Defendant’s motion to dismiss the claim for lack of jurisdiction pursuant to CPLR 3211 (a) and Court of Claims Act §§ 10 and 11 is granted. Defendant properly preserved its objection to the manner of service in its answer in accordance with Court of Claims Act § 11 [c] and offered sufficient proof in support of the motion to establish that claimant did not serve the claim upon the Attorney General in a proper manner.

Case Information

UID:
2008-039-065
Claimant(s):
WILLIAM P. SCUTT, 04B1331
Claimant short name:
SCUTT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111661
Motion number(s):
M-74165
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
William P. Scutt, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Paul F. CaginoAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 10, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant seeks damages for injuries he allegedly sustained while an inmate at Bare Hill Correctional Facility due to defendant’s failure to provide him with adequate medical and dental treatment. The claim was filed with the Court on November 21, 2005, and issue was joined during February 2006. In its answer, defendant asserts, among other things, that “[t]he claim lacks jurisdiction since it was served by regular mail not personal service or certified mail, return receipt requested as required by Sections 10 (3) and 11 (a) of the Court of Claims Act.”

Defendant now moves the Court for an order dismissing the claim for lack of jurisdiction pursuant to CPLR 3211 (a) and Court of Claims Act §§ 10 and 11. More specifically, defendant argues that neither a claim nor a notice of intention to file a claim was served upon it within 90 days of the accrual of the incident. Defendant further argues that the claim was served upon it by regular mail, rather than personally or by certified mail, return receipt requested as required by the Court of Claims Act. The affidavit of service attached to defendant’s motion papers provides that a copy of the notice of motion and supporting affirmation were mailed to claimant at his residential address, which is the same address that was last provided to the Court by claimant in a letter received on December 26, 2006.

Court of Claims Act § 11 (a) provides, in relevant part, that “a copy [of the claim] shall be served upon the attorney general . . . either personally or by certified mail, return receipt requested, or, where authorized by rule of the chief administrator of the courts and upon consent of the attorney general, by facsimile transmission or electronic means.” It is well settled that “[o]rdinary mail is not one of the methods of service authorized by Court of Claims Act § 11 (a) and, ‘[g]enerally, the use of ordinary mail to serve the claim upon the Attorney-General is insufficient to acquire jurisdiction over the State’ ” (Turley v State of New York, 279 AD2d 819, 819 [2001], lv denied 96 NY2d 708 [2001], quoting Philippe v State of New York, 248 AD2d 827 [1998]). “Any objection or defense based upon failure to comply with . . . the manner of service requirements set forth in subdivision a of this section . . . is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading” (Court of Claims Act § 11 [c]).

Here, an objection to the manner of service was properly raised in the answer in accordance with Court of Claims Act § 11 [c].[1] In support of the motion, defendant offers a copy of the envelope allegedly used to serve the claim upon the Attorney General which appears to have been sent by regular mail. Moreover, claimant’s affidavit of service reveals that on December 28, 2005 he sent a copy of his claim to the Attorney General by regular mail. Claimant does not offer any opposition to the motion. Thus, the Court finds that defendant offered sufficient proof in support of the motion to establish that claimant did not serve the claim upon the Attorney General in a proper manner. The Court therefore concludes that it is without jurisdiction of the claim.

To the extent that defendant moves the Court for an order dismissing the claim based on the timeliness of service pursuant to Court of Claims Act § 10, the Court finds that the defense is waived since defendant did not raise it in a preanswer motion to dismiss or in its answer (see Court of Claims Act § 11 [c]).

Accordingly, it is hereby ordered that M-74165 is granted and the claim is dismissed.


January 10, 2008
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:

  1. Notice of Motion dated October 31, 2007; and
  1. Affirmation in Support of Motion to Dismiss by Paul F. Cagino, AAG dated October 31, 2007 with exhibit.

[1]. The Court notes that defendant did not move for judgment on the ground of improper service within 60 days after service as required by CPLR 3211 (e). However, courts have concluded that this provision does not apply to claims in the Court of Claims (see Diaz v State of New York, 174 Misc 2d 63, 65 [1997]; Harris v State of New York, UID # 2007-037-022, Claim No. 112776, M-72652, CM-72675, Moriarty, III, J., May 1, 2007; Libbett v State of New York, UID # 2000-005-529, Claim No. 97634, M-61899, Corbett, Jr., J., August 17, 2000).