This matter comes before the court on a motion by the
, 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
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.