New York State Court of Claims

New York State Court of Claims
ALVAREZ v. STATE OF NEW YORK, # 2018-038-513, Claim No. 126231, Motion No. M-91158

Synopsis

Defendant's motion to dismiss for improper manner of service of the claim denied. Defendant did not submit proof that claim was served by regular mail, not CMRRR.

Case information

UID: 2018-038-513
Claimant(s): JOSE ALVAREZ
Claimant short name: ALVAREZ
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 126231
Motion number(s): M-91158
Cross-motion number(s):
Judge: W. BROOKS DeBOW
Claimant's attorney: JOSE ALVAREZ, Pro se
Defendant's attorney: ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Heather R. Rubinstein, Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 11, 2018
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking damages for injuries allegedly sustained after he was assaulted by another inmate at Green Haven Correctional Facility on January 18, 2015. Defendant moves to dismiss the claim on the ground that the Court lacks jurisdiction because the claim was served by ordinary mail. Claimant opposes the motion.

Court of Claims Act 11 (a) (i) requires that if a claim is served upon the Attorney General by mail, it must be accomplished by certified mail, return receipt requested (CMRRR). Service of the claim by ordinary mail is insufficient to acquire personal jurisdiction over the defendant (see Govan v State of New York, 301 AD2d 757, 758 [3d Dept 2003], lv denied 99 NY2d 510 [2003]), and the failure to effect service by CMRRR is a jurisdictional defect that requires dismissal of the claim (see Turley v State of New York, 279 AD2d 819 [3d Dept 2001], lv denied 96 NY2d 708 [2001]; Philippe v State of New York, 248 AD2d 827 [3d Dept 1998]; Estrella v State of New York, UID No. 2008-018-634 [Ct Cl, Fitzpatrick, J., Sept. 3, 2008]).

Defendant has not borne its burden of demonstrating that the claim was served upon the Attorney General not by CMRRR, but by regular first class mail. The affirmation of the AAG who is defending the claim asserts that its motion is supported by proof that the claim was served by regular mail on May 26, 2015 (see Rubinstein Affirmation,  3), but the exhibit to which it refers is a duplicate of the notice of intention and an envelope that bears indicia of service by CMRRR (see id., Exhibit 2; Exhibit 1), and no other proof of the manner of service of the claim is submitted.

Accordingly, it is

ORDERED, that defendant's motion number M-91158 is DENIED.

January 11, 2018

Saratoga Springs, New York

W. BROOKS DeBOW

Judge of the Court of Claims

Papers considered:

(1) Claim number 126231, filed June 1, 2015;

(2) Verified Answer, filed June 29, 2015;

(3) Notice of Motion to Dismiss, dated October 2, 2017;

(4) Affirmation of Heather R. Rubinstein, AAG, in Support of Motion to Dismiss, dated

October 2, 2017, with Exhibits 1-3;

(5) Traverse of Jose Alvarez to Defendant's Motion to Dismiss, dated October 6, 2017.