New York State Court of Claims

New York State Court of Claims
TAPPAN v. STATE OF NEW YORK, # 2010-015-220, Claim No. 124551, Motion No. M-94916


Claim was dismissed for improper service.

Case information

UID: 2010-015-220
Claimant short name: TAPPAN
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 124551
Motion number(s): M-94916
Cross-motion number(s):
Claimant's attorney: No Appearance
Defendant's attorney: Honorable Letitia James, Attorney General
By: Glenn C. King, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 24, 2019
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Defendant moves to dismiss the claim on the ground it was not served in the manner required by Court of Claims Act 11.

Claimant, a former inmate of the Department of Corrections and Community Supervision, alleges correction officers falsely accused him of possessing illicit drugs and placed him in a cell where two unknown officers assaulted him multiple times while he was handcuffed. Following a prison disciplinary hearing, claimant was found guilty of a rule violation and a penalty of 60 days in the Special Housing Unit was imposed, together with the loss of other privileges. Claimant alleges the disciplinary findings were reversed in connection with his administrative appeal.

Defendant contends in support of its motion that the claim was served by ordinary mail rather than personal service or certified mail, return receipt requested, as required by Court of Claims Act 11 (a) (i). Defendant supports its motion with a copy of the envelope in which the claim was mailed, which contains none of the indicia of a certified mailing (see defendant's Exhibit A).

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 11 are jurisdictional in nature, they must be strictly construed (Lurie v State of New York, 73 AD2d 1006, 1007 [3d Dept 1980], affd 52 NY2d 849 [1981]; see also Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). Absent waiver of the defense of improper service of the claim (Court of Claims Act 11 [c]), service of the claim by ordinary mail is insufficient to acquire jurisdiction over the defendant (Costello v State of New York, 164 AD3d 1420 [2d Dept 2018]; Encarnacion v State of New York, 133 AD3d 1049 [3d Dept 2015], lv denied 26 NY3d 919 [2016]; Brown v State of New York, 114 AD3d 632 [2d Dept 2014]; Fulton v State of New York, 35 AD3d 977 [3d Dept 2006], lv denied 8 NY3d 809 [2007]; Govan v State of New York, 301 AD2d 757 [3d Dept 2003], lv denied 99 NY2d 510 [2003]).

Defendant established, through submission of a copy of the envelope in which it was mailed, that the claim was improperly served by ordinary mail rather than one of the methods prescribed by Court of Claims Act 11 (a) (i). Inasmuch as the defendant preserved its objection to the manner of service by raising it as its fourth affirmative defense in the answer (Court of Claims Act 11 [c]), the claim must be dismissed.

Based on the foregoing, the defendant's motion is granted, and the claim is dismissed, without opposition.

December 24, 2019

Saratoga Springs, New York


Judge of the Court of Claims

Papers Considered:

  1. Notice of motion dated November 13, 201[9];
  2. Affirmation in support dated November 13, 2019, with Exhibits A-C.