New York State Court of Claims

New York State Court of Claims

MORRISON v. THE STATE OF NEW YORK, #2009-032-108, Claim No. 115936, Motion No. M-76053


Synopsis



Case Information

UID:
2009-032-108
Claimant(s):
PATRICK MORRISON
Claimant short name:
MORRISON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115936
Motion number(s):
M-76053
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Patrick Morrison, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Roberto Barbosa, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
February 10, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim, commenced in October 2008, is based on allegations that the medical staff of Southport Correctional Facility failed to provide claimant with appropriate treatment and care. In its answer, defendant State of New York alleged, as its first affirmative defense, that the claim had been served by regular mail, rather than certified mail, return receipt requested as required by section 11 of the Court of Claims Act. This defense was stated with sufficient particularity to satisfy the pleading requirement of Court of Claims Act § 11(c).


Court of Claims Act § 11 (a) provides, in relevant part, that a notice of intention and the copy of a claim that must be served on the Attorney General "either personally or by certified mail, return receipt requested.” In support of the motion to dismiss, defendant has provided a photocopy of the envelope in which the claim was received by the Office of the Attorney General on October 16, 2008. The envelope shows that regular mail postage (42¢) was used. Claimant argues, however, that he does not have the money to pay for special mail service and, therefore, that the requirement should be waived for him. He states, “I have no money or any way to send this certified mail and the DOCS follows a strict rule for this” (Morrison Affidavit). In fact, the rules and regulations of DOCS require that the facility pay for specialized mail handling service, such as certified mail, return receipt requested, when such service is “required by statute, court rule or court order” if the inmate does not have sufficient funds to do so himself (7 NYCRR § 721.3[a][3][ii][a]).
Consequently, claimant was able to effect proper service on the Attorney General even if he had no money in his inmate account.

The requirements set forth in Court of Claims Act § 11 are jurisdictional in nature and, as such, must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722 [1989]; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687 [3d Dept 2000]). A claimant’s failure to serve the Attorney General personally or by certified mail, return receipt requested, is a fatal jurisdictional defect and deprives this Court of the power to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Bogel v State of New York, 175 AD2d 493 [3d Dept 1991]).

Defendant’s motion is granted, and Claim No. 115936 is dismissed.



February 10, 2009
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


Papers Considered:


1. Notice of Motion and Supporting Affirmation of Roberto Barbosa, AAG;

2. Response of Opposition of Patrick Morrison, pro se.

Filed papers: Claim, Answer