Defendant's pre-answer motion for an order dismissing the claim based upon improper service was granted.
|Claimant short name:||OLOMONSAI|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||OHNJA OLOMONSAI, Pro Se|
|Defendant's attorney:||HON. ANDREW M. CUOMO
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 4, 2010|
|See also (multicaptioned case)|
Defendant has brought this pre-answer motion seeking an order dismissing the claim based upon improper service of the claim, as well as for the failure of the claimant to state a cause of action.
The following papers were considered by the Court in connection with this motion:
Pre-Answer Notice of Motion, Affirmation, with Exhibits 1,2
"Motion Brief" submitted by claimant 3
Filed Papers: Claim.
As can best be determined by this Court, claimant seeks damages in this claim for psychological injury and mental anguish after he was allegedly subjected to a racial slur from a correction officer at Mid-State Correctional Facility, where he was then incarcerated.
As set forth in Court of Claims Act § 11(a), a claim must be served upon the Attorney General either personally or by certified mail, return receipt requested (Hodge v State of New York, 213 AD2d 766). These service requirements are jurisdictional prerequisites to the institution and maintenance of a claim, and as such must be strictly construed (Greenspan Bros. v State of New York, 122 AD2d 249). Service of a claim by ordinary, first class mail is not one of the methods of service authorized by Court of Claims Act § 11(a) (Turley v State of New York, 279 AD2d 819), and service of a claim which is not made in accordance with the provisions of § 11 is insufficient to confer jurisdiction over the State (Hodge v State of New York, supra; Philippe v State of New York, 248 AD2d 827).
In this case, defendant asserts that the claim herein was served upon the Attorney General by regular, first class mail. Defendant's attorney has submitted a copy of the envelope in which the claim was served (Exhibit B to Items 1,2), on which no postage was registered. However, there are no markings on the envelope to indicate that the claim was sent by certified mail, return receipt requested, as required by statute. Furthermore, the Court credits the Affirmation of Assistant Attorney General Marmelstein, in which he affirms that the claim was not served by certified mail, return receipt requested, or by personal delivery.
Accordingly, this Court finds that this claim was not served in accordance with the jurisdictional requirements of Court of Claims Act § 11(a). As a result, this Court lacks jurisdiction over the claim, and it must be dismissed.
Based on this determination that the claim must be dismissed for improper service, it is not necessary for the Court to address that aspect of defendant's motion which seeks dismissal of the claim for failure to state a cause of action.
Accordingly, it is
ORDERED, that Motion No. M-77555 is hereby GRANTED; and it is further
ORDERED, that Claim No. 117571 is hereby DISMISSED.
March 4, 2010
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims