New York State Court of Claims

New York State Court of Claims

IZQUIERDO v. THE STATE OF NEW YORK, #2009-038-514, Claim No. 111784, Motion No. M-75732


Synopsis


Defendant’s motion to dismiss on jurisdictional grounds granted. Claim was served by ordinary first class mail, and objection to manner of service was set forth in defendant’s verified answer.

Case Information

UID:
2009-038-514
Claimant(s):
GILBERTO IZQUIERDO
Claimant short name:
IZQUIERDO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111784
Motion number(s):
M-75732
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
GILBERTO IZQUIERDO, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michele M. Walls, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 4, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim seeks damages for injuries sustained as a result of defendant’s alleged negligence in the provision of medical treatment while claimant was incarcerated in a State correctional facility. Defendant moves to dismiss the claim on jurisdictional grounds. Claimant has not submitted opposition to the motion. Court of Claims Act § 11 (a) (i) requires that if a claim is served upon the Attorney General by mail, it must be accomplished by certified mail, return receipt requested. The service requirements of the Court of Claims Act must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]), and the failure to effect service by certified mail, return receipt requested requires dismissal of the claim (see Turley v State of New York, 279 AD2d 819 [3d Dept 2001], lv denied 96 NY2d 708 [2001]; Philippe v State of New York, 248 AD2d 827 [3d Dept 1998]; Estrella v State of New York, UID #2008-018-634, Claim #114966, Motion No. M-75052, Fitzpatrick, J. [Sept. 3, 2008]; Desenclos v State of New York, UID #2007-042-514, Claim #113383, Motion No. M-73161, Siegel, J. [July 23, 2007]). The Court of Claims Act requires, however, that defendant’s objection to the manner of service be raised with particularity in the answer or a pre-answer motion to dismiss (Court of Claims Act § 11[c]).

Claimant properly served a notice of intention to file a claim on the Attorney General by certified mail, return receipt requested (see Walls Affirmation, Exhibit A). Thereafter, claimant served the claim upon the Attorney General, but did so by ordinary, first class mail (see id., Exhibit B). Defendant’s objection to the manner of service of the claim was set forth with particularity in defendant’s verified answer to the claim (see Walls Affirmation, Exhibit C, ¶ Fourth). Accordingly, the claim must be dismissed for lack of jurisdiction, and it is

ORDERED, that defendant’s Motion No. M-75732 is GRANTED, and Claim No. 111784 is DISMISSED.

February 4, 2009
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered
:


(1) Claim No. 111784, filed December 29, 2005;

(2) Verified Answer, filed January 31, 2006;

(3) Notice of Motion to Dismiss, dated October 9, 2008;

(4) Affirmation of Michele M. Walls, AAG, in Support of Motion to Dismiss, dated

October 8, 2008, with Exhibits A-C;

(5) Affidavit of Service of Ellen Lyons, sworn to October 9, 2008