New York State Court of Claims

New York State Court of Claims

CIOCHANDEA v. STATE OF NEW YORK, #2008-039-067, Claim No. 114035, Motion Nos. M-73885, M-73888


Synopsis


Defendant’s motion to dismiss the claim is granted. The Court concludes that it is without jurisdiction of the claim. Defendant offered sufficient proof to establish that claimant did not serve the claim upon the Office of the Attorney General either personally or by certified mail, return receipt requested, in accordance with Court of Claims Act § 11 (a).

Case Information

UID:
2008-039-067
Claimant(s):
IOAN CIOCHANDEA
Claimant short name:
CIOCHANDEA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114035
Motion number(s):
M-73885, M-73888
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Ioan Ciochandea, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Belinda A. WagnerAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 21, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

This claim arises out of, among other things, injuries allegedly sustained by claimant when he fell from the top bunk of his cell while an inmate at Clinton Correctional Facility. Defendant moves the Court for an order dismissing the claim pursuant to CPLR 3211 (a) (2), (7) and (8) and Court of Claims Act §§ 10 (3) and 11 (b). Claimant opposes and also moves the Court for an order granting him assigned counsel.

In support of its motion, defendant asserts that claimant served a notice of intention to file a claim upon the Office of the Attorney General on April 10, 2006, and subsequently served the claim upon the Office of the Attorney General on July 12, 2007. Defendant offers copies of the notice of intention and the claim, with time-stamps affixed thereto, confirming the dates of service as alleged. Prior to expiration of the time to serve an answer (see Uniform Rules for the Court of Claims, 22 NYCRR § 206.7), defendant brought the instant motion seeking dismissal of the claim, in relevant part, on the ground that the Court lacks jurisdiction as the claim was served upon defendant by regular mail contrary to the Court of Claims Act.[1]

Court of Claims Act § 11 (a) (i) provides, in relevant part, that “[t]he claim shall be filed with the clerk of the court . . . and . . . a copy shall be served upon the attorney general within the times hereinbefore provided for filing with the clerk of the court either personally or by certified mail, return receipt requested.” “The Court of Appeals has noted in interpreting the above provision that ‘statutory requirements conditioning suit must be strictly construed’ ” (Rodriguez v State of New York, 307 AD2d 657 [2003], quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). 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], quoting Philippe v State of New York, 248 AD2d 827 [1998]).

Initially, the Court notes that defendant has properly preserved its objection to the manner of service by bringing the instant motion to dismiss before service of the responsive pleading was required (see Court of Claims Act § 11 [c]). Moreover, defendant has offered sufficient proof to establish that claimant did not serve the claim upon the Office of the Attorney General either personally or by certified mail, return receipt requested, in accordance with Court of Claims Act § 11 (a). While claimant opposes the motion, other than general assertions, claimant offers no affidavits, exhibits or documents to support his position. Based upon the foregoing principles, the Court is constrained to find that it is without jurisdiction of the claim.

In light of the Court’s determination, claimant’s motion for the assignment of counsel is denied as moot.

Accordingly, it is hereby ordered that M-73885 is granted and the claim is dismissed, and that M-73888 is denied.


February 21, 2008
Albany, New York

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

Papers Considered
:

  1. Notice of Motion to Dismiss dated August 10, 2007;
  1. Affirmation in Support of Motion to Dismiss by Belinda A. Wagner, AAG, dated August 10, 2007 with exhibits;
  1. Affidavit in Support of Request for Permission to Proceed as a Poor Person by Ioan Ciochandea sworn to on June 20, 2007;
  1. Affirmation in Opposition to Request for Permission to Proceed as Poor Person by Belinda A. Wagner, AAG, dated September 7, 2007; and
  1. Letter in Opposition to Motion to Dismiss Claim by Ioan Ciochandea dated December 31, 2007.

[1]. Defendant contends that the manner of service was improper pursuant to Court of Claims Act § 10 (3). The Court notes that the provisions with respect to the manner of service are found at Court of Claims Act § 11 (a).