Claim was dismissed as it had been untimely served by regular mail.
|Claimant short name:||SPAVONE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Steven Spavone, Pro Se|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Carol A. Cocchiola, AAG
|Third-party defendant's attorney:|
|Signature date:||June 22, 2010|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim of Steven Spavone on the ground that it was untimely served, as well as improperly served by regular mail. The State raised these issues in the first and second affirmative defenses of its answer. In his claim, Mr. Spavone alleges that he was wrongfully assigned to a double cell at Sullivan Correctional Facility and thereafter assaulted by his cellmate on April 12, 2005.
Section 10 of the Court of Claims Act (the "Act") provides that a claim such as this must be filed with the Court and served on the Office of the Attorney General within 90 days of accrual unless a notice of intention is served within such time frame, after which the claim must then be served and filed within two years. Section 11 of the Act provides that the Attorney General must be served either personally or by certified mail, return receipt requested. Regular mail is not an authorized method of service and its use is insufficient to confer jurisdiction. See e.g. Philippe v State of New York, 248 AD2d 827, 669 NYS2d 759 (3d Dept 1998).
"It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and accordingly, must be strictly construed . . ." Byrne v State of New York, 104 AD2d 782, 783 (2d Dept 1984), lv denied 64 NY2d 607 (1985) (citations omitted). See also Mallory v State of New York, 196 AD2d 925 (3d Dept 1993).
Although he submitted opposition papers, claimant does not dispute that after he timely served a notice of intention on the Attorney General via certified mail on May 5, 2005, he thereafter served his claim on the Attorney General by regular mail on April 16, 2007. As set forth above, service by regular mail does not confer jurisdiction. In addition, Spavone's claim is jurisdictionally defective in that it was served on the Attorney General more than two years after the accrual date of April 12, 2005.
Accordingly, having reviewed the submissions(1) , IT IS ORDERED that motion no. M-78254 be granted and that claim no. 113498 be dismissed.
June 22, 2010
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. The following were reviewed: defendant's notice of motion with affirmation in support and exhibits A through D; and "[Claimant's] Affirmation and Opposition to [Defendant's] Motion to Dismiss" with exhibits A and B.