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][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 ;
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 ; Bogel v State of New
York, 175 AD2d 493 [3d Dept 1991]).
Defendant’s motion is granted, and Claim No. 115936 is dismissed.
1. Notice of Motion and Supporting Affirmation of Roberto Barbosa, AAG;
2. Response of Opposition of Patrick Morrison, pro se.
Filed papers: Claim, Answer