Defendant brings a motion to dismiss the claim for lack of personal and subject
jurisdiction. Claimant opposes the motion.
Defendant asserts that Claimant served a claim by regular mail on September 22,
2008. The envelope in which the claim was received bears only $1.17 postage and
bears no other markings reflecting that the envelope was sent certified mail,
return receipt requested.
that this was an improper method of service which requires dismissal of the
Claimant, in opposition to the motion, argues that a notice of intention was
served by certified mail, return receipt requested and that this gave the Court
jurisdiction. However, even when a notice of intention was timely and properly
served upon the Attorney General, a claim must be properly served in order to
commence an action in the Court of Claims.
The Court of Claims Act § 11 (a)(i) states in relevant part that
“[t]he claim shall be filed with the clerk of the court...[and] 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...” It is well established that the
requirements for service upon the Attorney General are jurisdictional and must
be strictly construed (Byrne v State of New York, 104 AD2d 782, 783,
lv denied 64 NY2d 607). Service by a method other than personal service
or certified mail, return receipt requested is not service sufficient to
commence an action in this Court (Hodge v State of New York, 158 Misc 2d
438, affd 213 AD2d 766). The Court does not have the discretion to
disregard a defect in service. Therefore, the Court lacks jurisdiction to hear
this improperly served claim.
Despite improper service of the claim in this matter, it appears Claimant could
cure the defect, if as it appears, he properly served a notice of intention
(Court of Claims Act § 10). However, in this case, the Court’s
lack of jurisdiction goes beyond merely the issue of service.
The claim seeks $10,000 in damages because the supervisor of the Riverview
Correctional Facility Inmate Grievance Program did not give Claimant’s
grievance a code and title and instead returned it to Claimant to revise his
description of the problem because the supervisor alleged that Claimant was
using the grievance program as an avenue to use inappropriate language and
slanderous inferences regarding staff.
Claimant alleges that the supervisor’s actions, in failing to assign a
grievance code to Claimant’s grievance, violated 7 NYCRR §
701.5(a)(2), and he was denied the opportunity to address and resolve his
grievance in accordance with Correction Law § 139, 7 NYCRR § 701.1(a)
and Directive 4040,
§ 701.1(a). Defendant argues that the Court lacks the jurisdiction to
review the actions of the Inmate Grievance Resolution Committee.
Claimant takes issue not with the substance of his grievance but with the
refusal to process his grievance in accordance with the applicable regulations.
Claimant has commenced an Article 78 proceeding for mandamus compelling
the Riverview Correctional Facility Inmate Grievance Committee to accept his
grievance, and assign it a grievance code and title in accordance with 7 NYCRR
§ 701.5(a)(2). This is the appropriate course of action, as this Court
lacks the jurisdiction to review “...any irregularity which may have
occurred in processing the inmate’s grievance.” (Jackson v State
of New York, Ct Cl, Collins, J., signed November 5, 2001, Claim No. 104689,
M-63928, M-63952 [UID # 2001-015-198]).
Based upon the foregoing, the defendant’s motion is GRANTED and the
claim is hereby DISMISSED, with prejudice.