New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2009-015-144, Claim No. 113116, Motion No. M-75927


Synopsis


Claim dismissed for improper service.

Case Information

UID:
2009-015-144
Claimant(s):
JEFFREY RIVERA
Claimant short name:
RIVERA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113116
Motion number(s):
M-75927
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Jeffrey Rivera, Pro SeNo Appearance
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael C. Rizzo, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 19, 2009
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves for dismissal of the instant claim pursuant to CPLR 3211 (a) (2) and (8) on the grounds that the Court lacks both subject matter jurisdiction of the claim and personal jurisdiction over the defendant due to improper service of the claim. Claimant, an inmate proceeding pro se, filed a claim on December 18, 2006 seeking damages for injuries sustained when he was allegedly assaulted by an unknown inmate at Great Meadow Correctional Facility. He alleges that the defendant was negligent in failing to provide adequate security and proper control of the inmates in the area. Both the claim and a notice of intention to file a claim were served by ordinary mail, in the same envelope, and received in the Attorney General's office on March 14, 2005 (defendant's Exhibit A).

Court of Claims Act § 11(a) (i) requires that the claim be filed with the clerk of the court and that “a copy shall be served upon the attorney general . . . either personally or by certified mail, return receipt requested . . ." It is well settled that service of a claim by ordinary mail is a nullity (see Fulton v State of New York, 35 AD3d 977 [2006], lv denied 8 NY3d 809 (2007); Govan v State of New York, 301 AD2d 757 [2003], lv denied 99 NY2d 510 [2003]; Thompson v State of New York, 286 AD2d 831 [2001]). Defendant established that service was accomplished via ordinary mail through the submission of the envelope in which claim was mailed and the defense of improper service of the claim was properly preserved as the fifth defense asserted in the defendant's answer.

There was, however, a notice of intention served together with the claim, a fact the defendant acknowledges. Although service of the notice of intention was also improper, this defense was waived by defendant's failure to raise improper service of the notice of intention as a defense in its answer to the claim (see Court of Claims Act § 11 [c]). However, the time for service of the claim has now expired (see Court of Claims Act § 10 [3]) and the claim must, therefore, be dismissed. Accordingly, the defendant's motion is granted without opposition.



March 19, 2009
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated November 24, 2008;
  2. Affidavit of Michael C. Rizzo sworn to November 24, 2008 with exhibits.