New York State Court of Claims

New York State Court of Claims

HARRIS v. THE STATE OF NEW YORK, #2009-015-146, Claim No. 116058, Motion No. M-75997


Synopsis


Motion to dismiss claim for improper service of claim was granted without opposition.

Case Information

UID:
2009-015-146
Claimant(s):
DUDLEY HARRIS
Claimant short name:
HARRIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116058
Motion number(s):
M-75997
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Dudley Harris, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Bonnie Gail Levy, 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 ground that the Court lacks jurisdiction due to improper service. It is undisputed that the claim was served by ordinary mail and received in the Office of the Attorney General on October 31, 2008. The claim was filed on November 6, 2008.

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 the claim was served by ordinary mail through the submission of the affidavit of service attached to the claim and the envelope in which the claim was mailed. In response to the instant motion the claimant states that he "respectfully request [sic] that the claim be dismissed. . ."

Accordingly, the defendant's motion is granted and the claim is dismissed.



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 December 5, 2008;
  2. Affirmation of Bonnie Gail Levy dated December 5, 2008 with exhibits;
  3. Reply of Dudley Harris dated December 18, 2008.