New York State Court of Claims

New York State Court of Claims

CARGILL v. THE STATE OF NEW YORK, #2008-041-510, Claim No. 110666


Claim served on Attorney General by regular mail is dismissed for lack of jurisdiction.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
New York State Attorney General
By: Thomas R. Monjeau, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 28, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The genesis of this claim is Herman Cargill’s (claimant) allegation that as a result of defendant’s negligence, he slipped and fell on a wet floor at Clinton Correctional Facility (Clinton) on June 1, 2004, struck a cart and injured the area around his left eye. Further, in the aftermath of a multi-inmate altercation taking place at the same time and in the same location, claimant alleges he was falsely accused of being part of that altercation and was improperly confined in keeplock until exonerated of the disciplinary charges defendant had lodged against him.

The representations of claimant and defendant regarding the events of June 1, 2004 are dramatically different. Defendant’s position is that claimant was injured not in a fall upon a wet floor, but as the result of being struck by another inmate. Further, although a trial was conducted in full, defendant, preserving a defense first raised in its Verified Answer, moved at trial to dismiss the claim for failure of jurisdiction, alleging that claimant, in violation of Court of Claims Act § 11 (a), filed his claim with the Clerk of the Court and served a copy of it upon the Attorney General, not by the required method of personal delivery or by certified mail, return receipt requested, but by regular, first class post office delivery. At trial, claimant opposed defendant’s motion, explaining he was appearing pro se, had initiated the claim pro se and that the Court had jurisdiction.

In support of its motion, defendant introduced Exhibits A and B. Exhibit A is claimant’s original Notice of Intention to File Claim, received by defendant on August 20, 2004, and the original mailer envelope in which it was sent. The document was mailed by regular, first class mail to defendant.

Exhibit B is a copy of claimant’s Claim, received by defendant on March 21, 2005, and the original mailer envelope in which it was sent. The Claim copy was mailed to the defendant by regular, first class mail. At trial, the Court reserved decision on defendant’s motion to dismiss.
Court of Claims Act § 11(a) (i) states:
“The claim shall be filed with the clerk of the court; and, except in the case of a claim for the appropriation by the state of lands, 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...”
Service of a notice of intention and/or claim by regular mail upon the Attorney General is insufficient to obtain personal jurisdiction over the defendant (Fulton v State of New York, 35 AD3d 977, 978 [3d Dept 2006], lv denied 8 NY3d 809 [2007]; see Govan v State of New York, 301 AD2d 757, 758 [3d Dept 2003], lv denied 99 NY2d 510 [2003]; Thompson v State of New York, 286 AD2d 831 [3d Dept 2001]; Turley v State of New York, 279 AD2d 819 [3d Dept 2001], lv denied 96 NY2d 708 [2001], rearg denied 96 NY2d 855 [2001]).

Claimant’s position that he initiated the claim pro se, while accurate, does not and cannot preserve the claim: “A litigant’s decision to proceed without counsel does not confer any greater rights than those afforded to other litigants” (Sloninski v Weston, 232 AD2d 913, 914 [3d Dept 1996], lv denied 89 NY2d 809 [1997]).

The Court now grants defendant’s motion. The claim is dismissed. The Court need not, indeed the Court cannot, address the factual allegations of the claim. The Court lacks jurisdiction to do so.

For the foregoing reasons, Claim No. 110666 is hereby dismissed.

All motions not previously decided are hereby denied.

Let judgment be entered accordingly.

August 28, 2008
Albany, New York

Judge of the Court of Claims