New York State Court of Claims

New York State Court of Claims

SPENCER v. C.N.Y.P.C.


DR. MAXYMILLIAN


DR. AMIDON


OFFICE OF MENTAL HEALTH, #2009-042-514, Claim No. 116840, Motion No. M-76906


Synopsis


This is a pre-answer motion to dismiss claim brought by defendant pursuant to CPLR 3211 for lack of subject matter jurisdiction and/or lack of personal jurisdiction, on the ground that the claim was improperly served. The court finds that the claimant failed to properly serve the defendant and therefore this court failed to obtain jurisdiction over the defendant.

Case Information

UID:
2009-042-514
Claimant(s):
CRAIG SPENCERUnit 405 #361683
Claimant short name:
SPENCER
Footnote (claimant name) :

Defendant(s):
C.N.Y.P.C.
DR. MAXYMILLIAN
DR. AMIDONOFFICE OF MENTAL HEALTH
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116840
Motion number(s):
M-76906
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
CRAIG SPENCER, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQ. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 9, 2009
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The court has considered the following papers on defendant’s motion to dismiss the claim:
  1. Notice of Motion, filed June 25, 2009
  2. Affirmation of G. Lawrence Dillon, Esq., dated June 8, 2009
  3. Exhibits A - B, annexed to the moving papers
  4. Letter from claimant to the Chief Clerk of the Court of Claims, dated June 27, 2009

This matter comes before the court on a motion by the defendant[1], pursuant to CPLR 3211, to dismiss the claim for lack of subject matter jurisdiction and/or lack of personal jurisdiction, on the ground that the claim was improperly served.

Defendant argues that the claim was not properly served, as the requirements of Court of Claims Act § 11 (a) (i) have not been met. The claim was not served upon the Attorney General by certified mail, return receipt requested, as evidenced by the envelope in which the claim was served.

The only “opposition” received from claimant is an unsworn letter to the Clerk of the Court stating, in part, that “I . . . have no control on how I use the mail due to I have no funds for special mail.” However, it is unclear whether the letter was intended as motion opposition; the letter is unsworn, and claimant offers no documentary proof, explanation for, or support of, his bald statement that he had no funds for “special mail”. Furthermore, the letter does not dispute defendant’s assertion that service was improper.

Court of Claims Act § 11 (a) (i) specifically provides that:


[t]he claim shall be filed with the clerk of the court; and, except in the case of a claim for the appropriation by the state of lands, 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 law is well established that the “requirements of . . . Section 11 of the Court of Claims Act are jurisdictional in nature and, therefore, must be strictly construed” (Finnerty v New York State Thruway Authority, 75 NY2d 721, 722, citing with favor, Buckles v State of New York, 221 NY 418, 423 - 424). In Finnerty, where the Attorney General had not been properly served under Court of Claims Act § 11, the court found that the failure to properly serve under Section 11 resulted “not in a failure of personal jurisdiction . . . but in a failure of subject matter jurisdiction which may not be waived.” (Finnerty v New York State Thruway Authority, 75 NY2d 721, 723). “[T]he use of ordinary mail to serve the claim upon the Attorney-General is insufficient to acquire jurisdiction over the State” (Philippe v State of New York, 248 AD2d 827 [3rd Dept 1998]).

Thus, this court failed to obtain jurisdiction over the defendant as a result of the claimant Spencer’s failure to properly serve the defendant.

The defendant’s motion is granted and the claim is dismissed.



September 9, 2009
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims




[1].While the State of New York is not a named defendant in this case, it is the only proper defendant in this matter. As a result, and for purposes of this motion, the Court considers the State of New York as the only defendant.