The claim is dismissed for claimant's failure to serve the claim by certified mail, return receipt requested.
|Claimant(s):||RICHARD SUNDAY IFILL|
|Claimant short name:||IFILL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Richard Sunday Ifill, Pro Se|
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Ray A. Kyles, AAG
|Third-party defendant's attorney:|
|Signature date:||November 26, 2019|
|See also (multicaptioned case)|
Claimant, an inmate proceeding pro se, filed the instant claim on November 6, 2017. Defendant now moves for dismissal of the claim on the ground that the Court lacks jurisdiction over the claim as claimant failed to serve the claim by certified mail, return receipt requested pursuant to Court of Claims Act § 11 (a).
Court of Claims Act § 11 (a) (i) states, in pertinent part, that the claim shall be filed with the Clerk of the Court, and a copy shall be served upon the Attorney General within the times provided for filing with the Clerk of the Court either personally or by certified mail, return receipt requested. Compliance with the filing and service requirements contained in the Court of Claims Act is a jurisdictional prerequisite to bringing and maintaining an action in the Court of Claims (Buckles v State of New York, 221 NY 418 ), and failure to comply constitutes a fatal jurisdictional defect requiring dismissal (Finnerty v New York State Thruway Auth., 75 NY2d 721 ; Suarez v State of New York, 193 AD2d 1037 [3d Dept. 1993]). Any objection or defense based upon the failure to comply with the manner of service requirements is waived unless raised, with particularity, either by a motion to dismiss made before the service of the responsive pleading is required or in the responsive pleading (Court of Claims Act § 11 [c] [ii]).
In support of its motion to dismiss, defendant states that the envelope in which the claim was mailed shows that the claim was mailed by regular United States mail. Defendant submits a true and accurate copy of the envelope in which the claim was mailed in support of its motion, (Exhibit B), and argues that because claimant failed to properly serve his claim upon defendant, the Court lacks jurisdiction and the claim must be dismissed. The Court agrees. The copy of the envelope submitted as an exhibit to the instant motion establishes that the claim was served by "priority mail" (id.). It is well-established that "[a]lternative mailings which do not equate to certified mail, return receipt requested, are inadequate and do not comply with Court of Claims Act § 11 (a)" (Hodge v State of New York, 213 AD2d 766, 767 [3d Dept. 1995] [citations omitted]). Therefore, the Court finds that claimant's service of the claim by priority mail is insufficient to confer jurisdiction with this Court. Claimant has not responded to defendant's motion, despite claimant's burden to establish proper service by a preponderance of the credible evidence once service has been challenged (see Caci v State of New York, 107 AD3d 1121, 1124 [3d Dept. 2013]). In light of the foregoing, it is hereby
ORDERED that defendant's motion (M-94180) is GRANTED and claim number 130520 is DISMISSED.
November 26, 2019
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
Papers Considered:1. Notice of Motion, dated June 11, 2019; and Affirmation in Support of Motion to Dismiss, affirmed by Ray A. Kyles, AAG on June 11, 2019, with Exhibits A through C annexed thereto.