The State's motion to dismiss this pro se claim is granted. The Court finds that the claim is jurisdictionally defective as claimant served the claim by regular mail contrary to Court of Claims Act 10 (3) and 11 (a) (i).
|Claimant short name:||RAMOS|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||GUILLERMO RAMOS, Pro Se|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Darren Longo, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 16, 2020|
|See also (multicaptioned case)|
Claimant Guillermo Ramos, an inmate proceeding pro se, seeks damages in claim no. 131470 for the alleged negligence of the defendant while he was incarcerated at Collins Correctional Facility (Collins) when he slipped and fell causing injury to his left ankle. The defendant moves to dismiss the claim on the grounds that it was jurisdictionally defective as it was served by regular mail. This defense was raised with particularity in defendant's answer in compliance with Court of Claims Act § 11 (c). Claimant did not appear or otherwise submit any opposition to this motion.
The claim alleges that while an inmate at Collins on January 9, 2016, claimant slipped and fell in the bathroom area sustaining what he characterizes as a serious injury to his left ankle. After his fall, claimant was taken to the Collins Medical Unit and was diagnosed with a severe ankle sprain. Claimant alleges that he was subsequently sent to the Erie County Medical Center, where x-rays taken diagnosed damage to his ankle that required surgery. Court of Claims Act §§ 10 (3) and 11(a) (i), provide that a claim for damages allegedly caused by the negligence of the State of New York must be filed and a copy served upon the Attorney General personally or by certified mail, return receipt requested, within ninety (90) days of accrual of the claim, unless the Claimant shall within the same ninety (90) day period serve upon the Attorney General a notice of intention to file a claim, in which event the claim shall be filed and served within two years after accrual of the negligence claim. The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 ). The failure to properly serve a copy of the claim upon the Attorney General personally or by certified mail, return receipt requested, divests the Court of jurisdiction requiring dismissal of the claim (Dreger v New York State Thruway Auth., 81 NY2d 721 ). Defendant alleges that claim no. 131470 was improperly served by regular mail.
On May 23, 2018, claimant served upon the Attorney General's Office a copy of the claim (Exhibit A). Attached to the claim is an affidavit of service. In it, the claimant states that copies of the claim were sent to the Clerk of the Court of Claims and to the Attorney General "by depositing in the U.S. mail at Southport Corr. Fac." Nothing in the affidavit of service indicates that the claim was to be served by certified mail, return receipt requested. In addition, also attached with this motion is a copy of the envelope in which the claim was served. This envelope shows postage of $0.89, an amount insufficient for service by certified mail. Regular mail is not an authorized method of service (Miranda v State of New York, 113 AD3d 943 [3d Dept 2014]). Defendant raised the improper service of the claim by regular mail as an affirmative defense in its answer as required by Court of Claims Act § 11 (c) (Defendant's Exhibit B). As the claim was improperly served by regular mail, this Court does not have jurisdiction and the claim must be dismissed (Fulton v State of New York, 35 AD3d 977 [3d Dept 2006], lv denied 8 NY3d 809 ).
Accordingly, defendant's motion no. M-95869 to dismiss the claim is granted and claim no. 131470 is dismissed as being jurisdictionally defective.
December 16, 2020
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1) Notice of motion and affirmation of Darren Longo, Esq., Assistant Attorney General dated August 24, 2020 with annexed Exhibits A and B.