Defendant's motion to dismiss the claim for improper service was granted.
|Claimant short name:||GORIS|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Simon Goris, Pro Se|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Shadi Masri, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 27, 2020|
|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 pro se inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), alleges that certain of his personal property was seized following his arrest by the New York State Police on January 14, 2018, including the motor vehicle he was operating at the time of his arrest. Claimant alleges that although the criminal matter was settled, his personal property has not been returned.
Defendant contends in support of its motion that both a Notice of Intention to File a Claim and the Claim itself were 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 copies of the envelopes in which the notice of intention and the Claim were mailed. Neither envelope contains indicia of a certified mailing (see defendant's Exhibits A and B).
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 ; see also Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ). 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, 133AD3d 1049 [3d Dept 2015], lv denied 26 NY3d 919 ; 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 ; Govan v State of New York, 301 AD2d 757 [3d Dept2003], lv denied 99NY2d 510 ).
Defendant established through submission of a copy of the envelope in which the claim was mailed that it was improperly served by ordinary mail rather than one of the methods prescribed by Court of Claims Act § 11 (a) (i). Moreover, in opposition to the motion claimant concedes that both the notice of intention and the Claim were served by ordinary mail. While claimant also indicates that he had insufficient funds to accomplish service by certified mail, return receipt, he failed to demonstrate that prison presented an obstacle to his compliance (Matter of Adams v Annucci, 175 AD3d 1687 [3d Dept 2019]). Significantly, DOCCS' regulations provide for a weekly free postage allowance which may be used for certified mailings that are required by statute (7 NYCRR 721.3). Inasmuch as the defendant preserved its objection to the manner of service by raising it as its fifth affirmative defense in its 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.
February 27, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims