Claim was dismissed for improper service.
|Claimant short name:||DORSEY|
|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:||Ronald Dorsey, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Michael C. Rizzo, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 21, 2009|
|See also (multicaptioned case)|
Defendant moves for dismissal of the instant claim pursuant to CPLR 3211 on the grounds that the Court has neither subject matter of the claim nor personal jurisdiction over the defendant due to improper service of the claim.
Claimant alleges that he was wrongfully convicted and that he is being wrongfully confined in a psychiatric center. He alleges in the claim that although a writ of habeas corpus directing his release from prison was granted, officials at Great Meadow Correctional Facility "went to Onida [sic] County Court to adjudicate him as a mentally ill inmate and sought to commit him to Central Psyiratic [sic] Center Marcy N.Y. for 6 months..."
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 . . ." Service of the claim by ordinary mail service is improper (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 , lv denied 99 NY2d 510 ; Thompson v State of New York, 286 AD2d 831 ). Defendant established, through submission of a copy of the envelope in which the claim was mailed, that the claim was served upon the Attorney General's Office by ordinary mail service. In opposition to the motion, claimant does not dispute service by ordinary mail but avers that he was unable to afford service by certified mail, return receipt requested. "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" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ). Improper service of the claim requires dismissal. Defendant's motion is granted and the claim is dismissed.
September 21, 2009
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: