New York State Court of Claims

New York State Court of Claims
WORD v. THE STATE OF NEW YORK, # 2018-041-006, Claim No. 130185, Motion Nos. M-91133, M-91267, M-91382

Synopsis

Claim is dismissed for lack of jurisdiction where service of claim upon Attorney General was not made either personally or by certified mail, return receipt requested.

Case information

UID: 2018-041-006
Claimant(s): DIANE WORD
Claimant short name: WORD
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130185
Motion number(s): M-91133, M-91267, M-91382
Cross-motion number(s):
Judge: FRANK P. MILANO
Claimant's attorney: DIANE WORD
Pro Se
Defendant's attorney: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
By: Matthew H. Feinberg, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 19, 2018
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Defendant moves to dismiss (M-91133) this claim alleging that the inmate-claimant was forced to clean up sewage at the Bedford Hills Correctional Facility on June 14, 2017, asserting that claimant failed to serve the claim on the Attorney General by certified mail, return receipt requested, as required by Court of Claims Act 11 (a) (i). The claim was served on the Attorney General on August 29, 2017.

Claimant served an amended claim on the Attorney General on October 10, 2017, in response to defendant's motion M-91133, and also moved for summary judgment (M-91267) on the amended claim.

Defendant responded to claimant's amended claim by serving a motion to dismiss (M-91382) the amended claim and also served two identical affirmations in opposition to claimant's motion for summary judgment.

Claimant served an affidavit in opposition to motion to dismiss the claim, arguing that the claim is "equivalent to notice of intention to defendant pertaining to amended claim."

Court of Claims Act 11 (a) (i), provides, at relevant part:

"The claim shall be filed with the clerk of the court; and . . . a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court. Any notice of intention shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for service upon the attorney general."

The defendant asserts, without contradiction by claimant, that the claim was served by certified mail, but not by "certified mail, return receipt requested."

Claimant is required to satisfy the "literal notice requirements of Court of Claims Act 11" (Femminella v State of New York, 71 AD3d 1319 [3d Dept 2010]). Any manner of service other than personal service or certified mail, return receipt requested, is insufficient to strictly fulfill the statutory criteria (Femminella 71 AD3d at 1319).

The claim was not served by either personal service or certified mail, return receipt requested, as required by Court of Claims Act 11 (a) (i) and the claim is jurisdictionally defective.

Claimant's service of an amended claim on the Attorney General on October 10, 2017, while the defendant's dismissal motion was pending, is unavailing because the Court's lack of jurisdiction over the claim, as filed and served, may not be cured by amendment (Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983 [3d Dept 1986]; Roberts v State of New York, 4 Misc 3d 768 [Ct Cl 2004]).

Further, claimant's assertion that service of the claim on the Attorney General on August 29, 2017 is "equivalent to notice of intention to defendant pertaining to amended claim" is also unavailing because Court of Claims Act 11 (a) (i) requires that a "notice of intention shall be served personally or by certified mail, return receipt requested."

In view of the dismissal of claim 130185, claimant's motion for summary judgment (M-91267) on the amended claim and defendant's motion to the dismiss amended claim (M-91382) are each denied as moot.

January 19, 2018

Albany, New York

FRANK P. MILANO

Judge of the Court of Claims

Papers Considered:

1. Defendant's Notice of Motion (M-91133), filed September 28, 2017;

2. Affirmation of Matthew H. Feinberg, dated September 27, 2017, and attached exhibit;

3. Amended claim, filed October 13, 2017;

4. Claimant's Notice of Motion for Summary Judgment (M-91267), filed October 23, 2017;

5. Affidavit of Diane Word, sworn to October 17, 2017;

6. Defendant's Notice of Motion (M-91382), filed November 3, 2017;

7. Affirmation of Matthew H. Feinberg, dated November 2, 2017, and attached exhibits

8. Two Affirmations of Matthew H. Feinberg, each dated November 7, 2017 and filed November 8 and 9, 2017, respectively;

9. Affidavit of Objection by Diane Word, sworn to November 14, 2017.