New York State Court of Claims

New York State Court of Claims

LOPEZ v. STATE OF NEW YORK, #2009-039-137, Claim No. 116909, Motion No. M-76864


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

James H. Ferreira
Claimant’s attorney:
Marcelino Lopez, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Belinda A. WagnerAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 20, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises out of the alleged failure by prison officials to provide claimant with an interpreter at his Tier III Superintendents Hearing and claimant’s subsequent unlawful confinement to the Special Housing Unit. The claim was received by the Office of the Attorney General on May 20, 2009 and subsequently filed with the Court on May 26, 2009. Defendant now moves the Court, in lieu of answering the claim, for an order dismissing the claim pursuant to Court of Claims Act § 11 on the basis of improper service. Claimant opposes the motion.

Court of Claims Act § 11 (a) (i ) provides, 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.” “The Court of Appeals has noted in interpreting the above provision that ‘statutory requirements conditioning suit must be strictly construed’ ” (Rodriguez v State of New York, 307 AD2d 657 [2003], quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). It is well settled that “[o]rdinary mail is not one of the methods of service authorized by Court of Claims Act § 11 (a) and, ‘[g]enerally, the use of ordinary mail to serve the claim upon the Attorney-General is insufficient to acquire jurisdiction over the State’” (Turley v State of New York, 279 AD2d 819, 819 [2001], quoting Philippe v State of New York, 248 AD2d 827 [1998]). Moreover, once an objection to the manner of service is raised, “claimant has the burden of establishing proper service by a preponderance of the evidence” (Simpson v State of New York, UID # 2008-030-558, Claim No. 115597, M-75361 [Scuccimarra, J., September 15, 2008]).

In support of its motion, defendant offers the affirmation of Assistant Attorney General Belinda A. Wagner. AAG Wagner states that her office was served with the claim by regular mail and that the claim was received by her office on May 20, 2009. In support of her statement, AAG Wagner attaches to her affirmation copies of the claim and the envelope with time-stamps evidencing that the claim was received by the Attorney General’s Office on May 20, 2009.

In opposition to the motion, claimant concedes that he did not serve the Attorney General’s Office by certified mail because he was without financial means to do so. He does not, however, “provide any proof of that circumstance beyond his own ‘self-serving statement’ ” (Simpson v State of New York, supra; see also White v State of New York, UID # 2008-009-005, Claim No. 114463, Motion No. M-74325 [Midey, J., January 29, 2008]; Chatin v State of New York, UID # 2001-013-023, Claim No. 98835, Motion No. M-63664 [Patti, J., October, 2001]). Nor does claimant offer proof to establish that the Attorney General’s Office was personally served with a copy of the claim. Based upon the foregoing principles, the Court is constrained to find that it is without jurisdiction of the claim as it was not served upon the Attorney General in the proper manner pursuant to Court of Claims Act § 11.

Accordingly, it is ordered that M-76864 is granted and the claim is dismissed.

August 20, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered
  1. Notice of Motion to Dismiss dated June 23, 2009;
  2. Affirmation in Support of Motion to Dismiss by Belinda A. Wagner, AAG, dated June 23, 2009 with exhibit;
  3. Notice of Motion in Opposition to Dismiss dated June 29, 2009; and
  4. Affirmation in Support of Motion in Opposition to Dismiss by Marcelino Lopez sworn to on June 28, 2009 with exhibit.