Pro se inmate's claim was dismissed due to improper service of claim by regular mail service.
|Claimant short name:||PARARA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption is amended sua sponte to reflect the only properly named defendant.|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Nathaniel Parara, Pro Se
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Joan Matalavage, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 22, 2010|
|See also (multicaptioned case)|
Defendant moves for dismissal of the instant claim pursuant to CPLR 3211 (a) (2), (7) and (8) on the ground that the claim was not served in accordance with Court of Claims Act § 11 (a) (I).
Claimant, an inmate proceeding pro se, was found guilty following a Tier III disciplinary hearing of possessing a $100.00 bill. The hearing disposition sheet attached to the filed claim reflects that the money was to be placed in the claimant's inmate account. Claimant alleges that the money was not placed in his inmate account, despite the hearing officer's directive. Claimant exhausted his administrative remedy on April 17, 2007 and filed the instant claim on May 24, 2007. Defendant contends in support of its dismissal motion that the claim was served by ordinary mail rather than either personally or by certified mail, return receipt requested, as required. Improper service of the claim was raised as defendant's fourth and fifth defenses in its answer to the claim.
Court of Claims Act § 11(a) (i) requires that the claim be filed with the clerk of the court and that "a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general . . ." "Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721 ; Femminella v State of New York, 71 AD3d 1319  [service of notice of intention by Federal Express failed to satisfy the literal notice requirements of Court of Claims Act § 11]). Service of the claim by ordinary mail is therefore improper (Fulton v State of New York, 35 AD3d 977 , lv denied 8 NY3d 809 ; Govan v State of New York, 301 AD2d 757 , lv denied 99 NY2d 510 ; Thompson v State of New York, 286 AD2d 831 ). Defendant established through submission of a copy of the envelope in which the claim was mailed that it was served upon the Attorney General's Office by ordinary mail. Defendant having raised its objection to the manner of service as its fourth and fifth defenses in the answer (Court of Claims Act § 11 [c] [ii]), dismissal of the claim is required.
Accordingly, the defendant's motion is granted and the claim is dismissed.
July 22, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: