Claim for dismissed for improper service.
|Claimant short name:||CHAMBERS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Darien Chambers, 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:||November 3, 2010|
|See also (multicaptioned case)|
Defendant moves for dismissal of the claim pursuant to CPLR 3211 (a) (2), (7) and (8) on the grounds that the claim and notice of intention were improperly served.
The claim filed March 7, 2007 alleges damages for injuries sustained when he slipped and fell in the recreation yard of Great Meadow Correctional Facility on December 9, 2006. Defendant asserts in support of its motion that both the claim and notice of intention to file a claim were served by ordinary mail rather than one of the authorized methods prescribed by Court of Claims Act § 11 (a) (i). The envelopes in which the notice of intention and claim were mailed (defendant's Exhibit A) are date-stamped as being received in the Office of the Attorney General on February 26, 2007 and March 7, 2007, respectively, and reflect none of the customary indicia of certified mailing. Defendant served its answer to the claim raising as its third, fourth, fifth and sixth affirmative defenses that the Court lacks both subject matter and personal jurisdiction due to the fact that neither the notice of intention nor the claim were served by certified mail, return receipt requested, as required by Court of Claims Act § 11.
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 . . . Any notice of intention shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided . . ." It is well settled that service of a claim by ordinary mail is a nullity (see 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 the submission of the envelopes in which they were mailed that both the claim and notice of intention were served upon the Attorney General by ordinary mail. Having properly preserved its objection to the manner of service in its answer, the defendant's motion for dismissal of the claim is granted.
Accordingly, the defendant's motion is granted and the claim is dismissed.
November 3, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: