Defendant's motion to dismiss pro se claimant's bailment claim in its entirety is granted on grounds that the Court lacks subject matter jurisdiction over the claim pursuant to Court of Claims Act 10 (3), 10 (3-b), and 11 because it was neither personally served nor served by certified mail return receipt requested.
|Claimant short name:||HICKS|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DEBRA A. MARTIN|
|Claimant's attorney:||NO APPEARANCE|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: GLENN C. KING, AAG
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 8 , 2021|
|See also (multicaptioned case)|
The following papers were read on defendant's motion to dismiss:
1. Notice of Motion with Affirmation of Glenn C. King, AAG and attached exhibits, filed October 22, 2020;
Pro se claimant filed a bailment claim with the Clerk of the Court on December 18, 2018, alleging that his new pair of sneakers were not returned to him after his transfer from Upstate Correctional Facility to Coxsackie Correctional Facility. It is alleged that the claim accrued on February 27, 2018 and claimant seeks $50.00 in damages. Defendant answered the claim, denying all the allegations except those in paragraph one and asserting the affirmative defense that the Court lacked jurisdiction because the claim was served by ordinary mail, and not in compliance with Court of Claims Act § 11 (a).
The defendant filed a motion to dismiss based on this jurisdictional defect and submitted as an exhibit a copy of the envelope in which the claim was served on the Attorney General's Office which bears only two first class stamps and no notation that it was mailed by anything other than first class mail. (affirmation of defendant's counsel, exhibit A.) An examination of claimant's affidavit of service of mailing merely reflected that the claim was "in a properly sealed, post paid wrapper and deposited same in an official depository of the United States Postal Service . . . ." It did not identify the type of service. The claimant has not responded to the motion.
Section 11 (a) (1) of the Court of Claims Act, entitled Filing, service and contents of claim or notice of intention, sets forth the requirements for commencing an action in the Court of Claims. It requires that "[t]he 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." Furthermore, "[i]t is well settled that nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary." (Zoeckler v State of New York, 109 AD3d 1133, 1133 [4th Dept 2013][internal quotation marks and citations omitted].) "Failure to serve a claim upon the Attorney General is a non-waivable jurisdictional defect which divests this Court of subject matter jurisdiction." (Brown v State of New York, UID No. 2015-015-052 [Ct Cl, Collins, J., May 7, 2015] [internal citations omitted].) Accordingly, the Court lacks jurisdiction over the claim and it must be dismissed.
Alternatively, the claim is dismissed as a result of claimant's noncompliance with Uniform Rules of the Court of Claims § 206.6 (f). This section provides that any changes in the post office address of a claimant must be communicated in writing to the Clerk of the Court of Claims within 10 days. The Court confirmed on the Department of Corrections and Community Supervision's Inmate Lookup site that claimant was released from incarceration on September 3, 2020. The Court's letter dated October 29, 2020 providing notice of this motion was sent to claimant at his last known address (Wallkill Correctional Facility), but was returned to the Clerk with the declaration"RETURN TO SENDER ADDRESSEE NO LONGER HERE." Claimant's failure to provide the Clerk of the Court of Claims with his current address serves as an independent basis to dismiss his claim per § 206.6 (f) of the Uniform Rules. (see Purnell v State of New York, UID No. 2019-028-526 [Ct Cl, Sise, P.J., May 21, 2019].)
Accordingly, it is
ORDERED, defendant's motion dismiss claim (M-96054) is granted and Claim No. 132414 is dismissed in its entirety, with prejudice.
January 8 , 2021
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims