New York State Court of Claims

New York State Court of Claims

THOMAS v. THE STATE OF NEW YORK, #2009-030-549, Claim No. 113982, Motion No. M-77051


Synopsis


Motion to dismiss bailment claim based on affirmative defense asserted with particularity granted. Claim served regular mail, rather than personally or by certified mail, return receipt requested

Case Information

UID:
2009-030-549
Claimant(s):
BERNARD THOMAS
Claimant short name:
THOMAS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113982
Motion number(s):
M-77051
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
BERNARD THOMAS, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: ELYSE J. ANGELICO, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
August 25, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on defendant’s motion to dismiss:

1,2 Notice of Motion to Dismiss; Affirmation in Support of Defendant’s Motion to Dismiss by Elyse J. Angelico, Assistant Attorney General and attached exhibits

3,4 Filed papers: Claim, Answer

Bernard Thomas alleges in claim number 113982 that defendant’s agents negligently lost his personal property after his transfer from Sing Sing Correctional Facility to Fishkill Correctional Facility on or about October 3, 2006. The claim was filed in the Office of the Chief Clerk of the Court of Claims on July 23, 2007, and received by regular mail by the Office of the Attorney General on July 23, 2007. [See Affirmation in Support of Defendant’s Motion to Dismiss by Elyse J. Angelico, Assistant Attorney General, Exhibit A]. In its answer, in addition to general denials, defendant asserted six affirmative defenses including a sixth affirmative defense alleging that the Court lacks jurisdiction since the claim was served by regular mail, rather than personally or by certified mail, return receipt requested as required. [Ibid. ¶4, Exhibit B]. The present motion is based upon such defense.

Court of Claims Act §11(a) provides that the claim must be served personally or by certified mail, return receipt requested, upon the attorney general within the times prescribed in Court of Claims Act §10; and that service is complete when it is received in the Attorney General’s Office. Court of Claims Act §11(a)(i). A failure to serve the claim during the time period and in the manner required results in a lack of personal jurisdiction, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. In that case, the defense is waived. Court of Claims Act §11(c).[1] Failure to serve the claim at all results in a lack of subject matter jurisdiction that is not waiveable.

The claimant has the burden of establishing proper service [Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept 1989)] by a preponderance of the evidence. See Maldonado v County of Suffolk, 229 AD2d 376 (2d Dept 1996). Regulations require that proof of service be filed with the Chief Clerk within ten (10) days of service on the defendant. 22 NYCRR § 206.5(a).

Claimant has not submitted opposition to the present motion. A photocopy of the envelope in which the claim was mailed to the defendant shows that postage in the amount of $1.82 was paid, and there is no indication thereon of additional amounts paid that would reflect payment for certified mail service, or the remains of the green card. [See Affirmation in Support of Defendant’s Motion to Dismiss by Elyse J. Angelico, Assistant Attorney General, Exhibit A] Moreover, a review of the Clerk’s file shows that although an affidavit of service attesting to service of the claim upon the defendant was filed, it indicates only that the claim was deposited in a post office box, not that service by certified mail, return receipt requested was utilized. Additionally, no additional documentation concerning the manner of service, such as the green receipt card, has been filed with the Clerk or submitted on this motion.

Accordingly, claimant has not established that he served the claim upon the Attorney General as required, and the defendant has raised the issue with particularity in both its answer and in a timely motion. Court of Claims Act §11(a) and (c). Accordingly, Claim Number 113982 is hereby dismissed.



August 25, 2009
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. “Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, (ii) the manner of service requirements set forth in [11(a)], or (iii) the verification requirements as set forth in [11(b)] and [Civil Practice Law and Rules 3022] is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.”