Defendant's motion to dismiss the claim for improper service was granted, and the claim dismissed.
|Claimant short name:||MACK|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended sua sponte to reflect the only properly named defendant.|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||No Appearance|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Douglas R. Kemp, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 27, 2019|
|See also (multicaptioned case)|
Defendant moves to dismiss the instant claim pursuant to CPLR 3211 (a) (2) on the ground of improper service.
Claimant, a pro se inmate, alleges he was the victim of an assault and battery by a fellow inmate and seeks to hold the State liable on a theory of negligent supervision, among others.
Defendant contends in support of its dismissal motion that the claim was improperly served by certified mail, without a request for a return receipt, divesting this Court of subject matter jurisdiction.
Court of Claims Act § 11 (a) (i) requires that the claim be filed with the Clerk of the Court and that "a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general . . .". Inasmuch as the filing and service requirements of Court of Claims Act §§ 10 and 11are jurisdictional in nature, they must be strictly construed (Lichtenstein v State of New York, 93 NY2d 911 ; Dreger v New York State Thruway Auth., 81 NY2d 721 ; Finnerty v New York State Thruway Auth., 75 NY2d 721 ). Absent waiver of the defense of improper service of the claim (Court of Claims Act § 11 [c]), service of a claim in a manner which does not comply with the literal requirements of Court of Claims Act § 11 (a) (i) must be dismissed (Trimble v State of New York, 142 AD3d 1256 [3d Dept 2016], appeal dismissed 28 NY3d 1181 ; Encarnacion v State of New York, 133 AD3d 1049 [3d Dept 2015], lv denied 26 NY3d 919 ; Brown v State of New York, 114 AD3d 632 [2d Dept 2014]; Femminella v State of New York, 71 AD3d 1319 [3d Dept 2010]; Fulton v State of New York, 35 AD3d 977 [3d Dept 2006], lv denied 8 NY3d 809 ; Govan v State of New York, 301 AD2d 757 [3d Dept 2003], lv denied 99 NY2d 510 ).
Service of a claim by certified mail, without a request for a return receipt, does not meet the literal requirement of Court of Claims Act § 11 (a) (i), mandating dismissal of the claim (Urvashi v State of New York, Ct Cl, Jan. 9, 2017, Lopez-Summa, J., claim No. 127898, UID No. 2017-045-002; Vittor v State of New York, Ct Cl, Dec. 14, 2015, Sampson, J., claim No. 124628, UID No. 2015-053-526; Squitieri v State of New York, Ct Cl, Oct. 30, 2014, Collins, J., claim No. 123908, UID No. 2014-015-025; Chandler v State of New York, Ct Cl, June 6, 2014, DeBow, J., claim No. 118447, UID No. 2014-038-526).(2) Defendant established through submission of an attorney's affirmation and a copy of the envelope in which the claim was mailed that the claim was improperly served by certified mail, without a request for a return receipt, rather than one of the methods prescribed by Court of Claims Act § 11 (a) (i). Inasmuch as defendant preserved its objection to the manner of service by raising it with sufficient particularity as an affirmative defense in its answer (see Court of Claims Act § 11 [c]), dismissal of the claim is required.Accordingly, the defendant's motion is granted and the claim is dismissed, without opposition.
December 27, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
2. Unreported decisions from the Court of Claims are available via the internet at www.nyscourtofclaims.state.ny.us.