Defendant's motion to dismiss on jurisdictional grounds granted. Defendant demonstrated that claim was served on the Attorney General by regular mail, not CMRRR, and claimant offered no opposition.
|Claimant short name:||LOPEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||No Appearance|
|Defendant's attorney:||BARBARA D. UNDERWOOD, Attorney General
of the State of New York
By: Jeane L. Strickland Smith, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 5, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim alleging that he was wrongfully confined and assaulted by a correction officer at Green Haven Correctional Facility (CF) on July 7, 2017 and thereafter served with a falsified misbehavior report. Defendant moves in lieu of answer to dismiss the claim on the ground that the Court lacks jurisdiction because the claim was served by ordinary mail. Claimant has not submitted opposition to the motion, which will be granted for the reasons that follow.
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 ), 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 ; 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]).
In support of its motion to dismiss, defendant has demonstrated that the claim was served upon the Attorney General not by CMRRR, but by regular first class mail (see Strickland Smith Affirmation, ¶ 4, Exhibit B). Although it appears that claimant served a notice of intention to file the claim by certified mail, claimant has not controverted defendant's showing that the claim itself was served by ordinary mail. Thus, the claim is jurisdictionally defective and must be dismissed.
Accordingly, it is
ORDERED, that defendant's motion number M-93011 is GRANTED and claim number 131964 is hereby DISMISSED.
December 5, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 131964, filed September 10, 2018, with attachments;
(2) Notice of Motion to Dismiss, dated October 18, 2018;
(3) Affirmation of Jeane L. Strickland Smith, AAG, in Support of Motion to Dismiss,
dated October 18, 2018, with Exhibits A-B;
(4) Affidavit of Service of Motion to Dismiss of Laura Goosby, sworn to October 18, 2018.