New York State Court of Claims

New York State Court of Claims
LOPEZ v. THE STATE OF NEW YORK, # 2018-038-598, Claim No. 131964, Motion No. M-93011

Synopsis

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.

Case information

UID: 2018-038-598
Claimant(s): ELIOT LOPEZ
Claimant short name: LOPEZ
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 131964
Motion number(s): M-93011
Cross-motion number(s):
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
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 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 [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]).

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

Papers considered:

(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.