Claim was dismissed for improper service.
|Claimant(s):||TONI THOMPSON, CORY THOMPSON, BRENT THOMPSON and TEVIN THOMPSON|
|Claimant short name:||THOMPSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption is amended sua sponte to reflect the only properly named defendant.|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Toni Thompson, Pro se
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 26, 2009|
|See also (multicaptioned case)|
Defendant moves to dismiss the 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. Defendant also requests dismissal of the claim as untimely pursuant to Court of Claims Act §§ 10 (3) and 11.
According to the claim, Toni Thompson was sentenced to a five-year determinate prison term on February 5, 2001. Shortly before completion of her sentence, the Department of Correctional Services imposed and the Division of Parole enforced a five-year term of postrelease supervision without legal authority and in excess of their jurisdiction. Claimants allege that the Honorable John J. Connell, A.S.C.J., granted Ms. Thompson's petition for a writ of habeas corpus and vacated the remaining term of postrelease supervision on November 14, 2008.
Claimants, proceeding pro se, filed a claim on April 10, 2009 seeking damages arising from the alleged improper imposition of a term of postrelease supervision. Claimant, Toni Thompson, alleges causes of action on her own behalf for unlawful imprisonment (first cause of action), abuse of process (second cause of action) and mental anguish and stress (third cause of action). Claimants' fourth cause of action is for loss of "family relations" and appears to be asserted on behalf of the claimant, Toni Thompson, as well as her children.
"Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Long v State of New York, 7 NY3d 269 , quoting Lichtenstein v State of New York, 93 NY2d 911, 913 and Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ). 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 . . ." The law is clear that the State's waiver of immunity under Court of Claims Act § 8 is contingent upon claimants' compliance with the specific conditions set forth in article II of the Court of Claims Act, including the service and filing requirement contained in Section 11 (a) (i) (see, Lepkowski v State of New York, 1 NY3d 201, 206 ). As a result, the failure to comply with the manner of service provisions prescribed in Court of Claims Act § 11 (a) (i) requires the granting of a motion to dismiss the claim where the defect in service is raised "either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading" (Court of Claims Act §11 (c); Rodriguez v State of New York, 307 AD2d 657 ; Fulton v State of New York, 35 AD3d 977 , lv denied 8 NY3d 809 ; Govan v State of New York, 301 AD2d 757 , lv denied 99 NY2d 510 ; Thompson v State of New York, 286 AD2d 831 ). Defendant established that service of the claim was accomplished by ordinary mail through the submission of the envelope in which it was mailed. The objection to service having been timely raised in a pre-answer motion to dismiss, the motion is granted and the claim is dismissed.
August 26, 2009
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: