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 , quoting Dreger v New York State
Thruway Auth., 81 NY2d 721, 724 ). 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 , quoting Philippe v State of New York, 248 AD2d
827 ). 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,
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