Claim served improperly by regular mail was dismissed.
|Claimant short name:||FORBES|
|Footnote (claimant name) :|
|Defendant(s):||C.O. DRESSEL, LIEUTENANT JOSEPH MAXWELL|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Roger Forbes, Pro Se|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Roberto Barbosa, AAG
|Third-party defendant's attorney:|
|Signature date:||May 11, 2010|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim of Roger Forbes on the grounds that: (1) the notice of intention and claim were served by regular mail; (2) the claim was untimely; and (3) the Court lacks jurisdiction over the named defendants. In his claim, Mr. Forbes alleges that on July 19, 2003, while he was incarcerated at Sullivan Correctional Facility, a correction officer "negligently closed the pantry shutter down on [his] head," injuring his neck and back. He also complains of the medical treatment he received thereafter.
Claimant does not dispute that his notice of intention and claim, which were served on September 19, 2007 and August 25, 2009, respectively, were served by regular mail.(1) See ¶¶5 and 6 of the March 5, 2010 affirmation of Roberto Barbosa and exhibits A and B thereto. Defendant raised the issue of service by regular mail in the first and second affirmative defenses of its answer.
Section 11.a.(i) of the Act requires that both notices of intention and claims be served by either personal service or service by certified mail, return receipt requested. Regular mail is not an authorized method of service and its use is insufficient to obtain jurisdiction. See e.g. Philippe v State of New York, 248 AD2d 827, 669 NYS2d 759 (3d Dept 1998). Accordingly, the court lacks jurisdiction over claim no. 117318, and defendant's remaining arguments need not be reached.
In view of the foregoing, having reviewed the submissions(2) , IT IS ORDERED that motion no. M-77948 be granted and that claim no. 117318 be dismissed.
May 11, 2010
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. Forbes does assert that he served an additional notice of intention "in 2003," but he does not annex a copy, nor does he allege that that notice of intention was either personally served or served by certified mail, return receipt requested.
2. The Court reviewed the following: defendant's notice of motion with affirmation in support and exhibits A through D; and claimant's "affirmation" in opposition.