New York State Court of Claims

New York State Court of Claims

HENDERSON v. THE STATE OF NEW YORK, #2008-042-521, Claim No. 115097, Motion No. M-74957


Synopsis


This is a pre-answer motion to dismiss the claim pursuant to CPLR Rule 3211 (a) (2) and (8) and Court of Claims Act Section 11 (a) (i) brought by defendant. The motion is unopposed. The court found that it failed to obtain jurisdiction over the defendant due to claimant’s failure to properly serve the defendant. The defendant’s motion is granted and the claim is dismissed.

Case Information

UID:
2008-042-521
Claimant(s):
STEPHEN HENDERSON
Claimant short name:
HENDERSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115097
Motion number(s):
M-74957
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
STEPHEN HENDERSON, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 19, 2008
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This matter comes before the court on a pre-answer motion to dismiss the claim pursuant to CPLR Rule 3211 (a) (2) and (8) and Court of Claims Act Section 11 (a) (i)[1] for lack of personal jurisdiction and subject matter jurisdiction. The motion is unopposed. The court has considered the following papers:
1. Pre-Answer Notice of Motion, filed May 16, 2008
2. Affirmation of Joel L. Marmelstein, Esq., dated May 16, 2008
3. Exhibits A - B, annexed to the moving papers
4. Letter from Stephen Henderson, dated June 20, 2008
5. Letter from Andrea Lynch, Esq., Law Clerk, dated July 1, 2008

______________________________________


Defendant argues that the claim was not properly served, as the requirements of Court of Claims Act § 11 (a) (i) have not been met. The claim was not served upon the Attorney General by certified mail, return receipt requested, as evidenced by the envelope in which the claim was served.

Court of Claims Act § 11 (a) (i) specifically provides that:

[t]he 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 . . . .


The law is well established that the “requirements of . . . section 11 of the Court of Claims Act are jurisdictional in nature and, therefore, must be strictly construed” (Finnerty v New York State Thruway Authority, 75 NY2d 721, 722, citing with favor, Buckles v State of New York, 221 NY 418, 423 - 424). In Finnerty, where the Attorney General had not been properly served under Court of Claims Act § 11, the court found that the failure to properly serve under Section 11 resulted “not in a failure of personal jurisdiction . . . but in a failure of subject matter jurisdiction which may not be waived.” (Finnerty v New York State Thruway Authority, 75 NY2d 721, 723). “[T]he use of ordinary mail to serve the claim upon the Attorney-General is insufficient to acquire jurisdiction over the State” (Philippe v State of New York, 248 AD2d 827 [3rd Dept 1998]).

Thus, this court failed to obtain jurisdiction over the defendant as a result of the claimant Henderson's failure to properly serve the defendant.

The defendant’s motion is granted and the claim is dismissed.



September 19, 2008
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims




[1]. The Notice of Motion mistakenly refers to Court of Claims Act Section 11 (b), rather than Court of Claims Act § 11 (a) (i). However, the notice clearly states the legal foundation for the motion and the supporting affirmation states that the basis for the motion is Court of Claims Act § 11 (a) (i).