Claim was dismissed, without opposition, for improper service.
|Claimant short name:||GARCIA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Robert Garcia, Pro Se
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 24, 2010|
|See also (multicaptioned case)|
Defendant moves for dismissal of the claim pursuant to CPLR 3211 (a) (2) and (8) on the grounds that the claim was improperly served and is barred by the statute of limitations.
Claimant, a pro se inmate, alleges a cause of action for false imprisonment arising from the improper administrative imposition of postrelease supervision (PRS). Claimant alleges he was confined from November 2004 through November 2005 for violating the conditions of the improperly imposed PRS term. The claim was filed on May 10, 2010 together with, among other things, a notice of intention to file a claim and an affidavit of service. The affidavit of service indicates that either a notice of intention or a claim was served on the Attorney General by certified mail, return receipt requested. The date of service is not indicated on the affidavit.
In support of the instant dismissal motion, defense counsel avers that the Attorney General's Office received the claim by regular mail on May 11, 2010. Submitted as Exhibit A to defendant's motion is a copy of the claim and the envelope in which it was mailed. The envelope is postmarked May 7, 2010 and reflects none of the indicia of certified mailing.
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, 724 ; 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 a claim by ordinary mail is therefore improper (Fulton v State of New York, 35 AD3d 977 (2006), lv denied 8 NY3d 809 (2007); 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 the envelope in which the claim was mailed that it was served by regular mail. Inasmuch as defendant preserved its objection to the manner of service by moving for dismissal before service of a responsive pleading was required (Court of Claims Act § 11 [c]), and there being no opposition to the motion by the claimant, the motion is granted and the claim is dismissed.(1)
August 24, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. A nearly identical claim was filed in the Office of the Clerk of the Court of Claims on September 4, 2009 and assigned claim number 117363. That claim remains pending.