Defendant's pre-answer motion to dismiss this claim based upon improper service was granted.
|Claimant short name:||RODRIGUEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||DANIEL RODRIGUEZ, Pro Se|
|Defendant's attorney:||HON. ANDREW M. CUOMO
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 12, 2010|
|See also (multicaptioned case)|
Defendant has brought this pre-answer motion seeking an order dismissing the claim based upon improper service.
The following papers were considered by the Court in connection with this motion:
Pre-Answer Notice of Motion, Affirmation, with Exhibits 1,2
Response from Claimant, with Exhibit 3
In his claim, claimant seeks damages for the loss of personal property (6-9 pounds of turkey breast) which occurred on December 22, 2009 at Mid-State Correctional Facility, where claimant 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 postage in the amount of $.44 was registered. There are no other markings on the envelope to indicate that the claim was sent by certified mail, return receipt requested, as required by statute. Additionally, in his Affirmation in Support (Item 2) Assistant Attorney General G. Lawrence Dillon has affirmed that the claim was not served by certified mail, return receipt requested, or by personal delivery.
In his response to this motion to dismiss, claimant states that his claim was served by certified mail, return receipt requested, and he has attached photocopies of two separate receipts from the U.S. Postal Service for certified mailing, including return receipt. Additionally, as set forth in his response, claimant has indicated on each of his receipts the date on which his claim was filed. These dates are "2/8" and "2/24". Based upon other indications on these copies, the Court can safely assume that both of these filings occurred in 2010. The within claim, however, was received by the Chief Clerk of the Court of Claims on April 21, 2010, and was filed as of that date.
The date of filing of the within claim (April 21, 2010) is therefore substantially different from the date of filing indicated by claimant on the certified mail receipts (February 8, 2010 and February 24, 2010). Furthermore, the filings dates indicated by claimant, as well as the postal markings on the certified mail receipt cards, all predate the date set forth on the within claim (March 9, 2010).
Based on the foregoing, this Court finds and concludes that the certified mail receipt cards attached to claimant's response to this motion must refer to other mailings to the Attorney General, unrelated to the within claim. As a result, the Court finds and concludes that claimant has failed to establish to the satisfaction of this Court that the within claim was served by certified mail, return receipt requested.
Having found that this claim was not served in accordance with the jurisdictional requirements of Court of Claims Act § 11(a), this claim is jurisdictionally defective and must be dismissed.
Accordingly, it is
ORDERED, that Motion No. M-78242 is hereby GRANTED; and it is further
ORDERED, that Claim No. 118309 is hereby DISMISSED.
August 12, 2010
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims