Defendant's motion to dismiss the claim is granted, as claimant failed to serve the claim by certified mail, return receipt requested in accordance with Court of Claims Act § 11 (a).
|Claimant short name:||SMITH|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||Caption amended to reflect the only properly named defendant.|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Jatiek Smith, Pro Se|
|Defendant's attorney:||Hon. Eric T. Schneiderman, NYS Attorney General
By: Glenn C. King, Assistant Attorney General,
|Third-party defendant's attorney:|
|Signature date:||January 4, 2018|
|See also (multicaptioned case)|
Defendant moves this Court for an order pursuant to Court of Claims Act § 11 (a) and (b), dismissing the claim for lack of personal and subject matter jurisdiction, as the claim was served by ordinary mail and fails to particularize the property allegedly lost. The underlying claim alleges that Franklin Correctional Facility lost "vast amounts" of his personal property while he was housed in the Special Housing Unit (see Verified Claim). Claimant has not submitted any opposition to the motion. For the reasons set forth below, the Court grants defendant's motion and dismisses Claim No. 129410.
In support of its motion to dismiss, defendant states that it received the subject claim by ordinary mail on March 9, 2017. Defendant annexes a copy of the envelope containing the claim as proof that it was sent by ordinary mail, rather than by personal service or certified mail, return receipt requested (Exhibit A). Defendant timely answered the claim and in doing so, alleged, as its twelfth affirmative defense, that this Court lacks personal jurisdiction over defendant and subject matter jurisdiction over the claim, as the claim was delivered by ordinary mail instead of served personally or by certified mail, return receipt requested, as required by Court of Claims Act § 11 (a). Defendant now argues that because claimant failed to properly serve his claim upon defendant, the Court lacks jurisdiction and the claim must be dismissed. The Court agrees.
Court of Claims Act § 11 (a) (i) states, in pertinent part, that the claim shall be filed with the Clerk of the Court, and a copy shall be served upon the Attorney General within the times provided for filing with the Clerk of the Court either personally or by certified mail, return receipt requested. Compliance with the filing and service requirements contained in the Court of Claims Act is a jurisdictional prerequisite to bringing and maintaining an action in the Court of Claims (Buckles v State of New York, 221 NY 418 ), and failure to comply constitutes a fatal jurisdictional defect requiring dismissal (Finnerty v New York State Thruway Auth., 75 NY2d 721 ; Suarez v State of New York, 193 AD2d 1037 [3d Dept 1993]). Any objection or defense based upon the failure to comply with the manner of service requirements is waived unless raised, with particularity, either by a motion to dismiss made before the service of the responsive pleading is required or in the responsive pleading (Court of Claims Act § 11 [c] [ii]).
In the present case, claimant failed to serve his claim by personal service or certified mail, return receipt requested, and defendant timely pled the same as a defense in its responsive pleading prior to moving for dismissal.
Because the Court finds that it lacks jurisdiction of this matter, the Court finds no reason to reach defendant's argument pursuant to Court of Claims Act § 11 (b).
Based upon the foregoing, the Court grants defendant's motion to dismiss for lack of jurisdiction and dismisses Claim No. 129410.
January 4, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
Papers Considered:1. Notice of Motion, dated August 29, 2017; Affirmation in Support of Motion to Dismiss, signed by Glenn C. King, AAG on August 29, 2017, with Exhibits A through C annexed thereto.