Defendant's pre-answer motion to dismiss the claim for lack of jurisdiction granted. Claim was improperly served by regular mail.
|Claimant short name:||FERGUSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||No Appearance|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Shadi Masri, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 19, 2021|
|See also (multicaptioned case)|
Claimant, an individual formerly incarcerated in a State correctional facility, filed this claim alleging that he was wrongfully confined and that his constitutional rights were violated on June 7, 2019, in the gym at the correctional facility where he was housed at the time. Defendant now moves to dismiss the claim on the ground that the Court lacks jurisdiction over the claim as it was improperly served by regular mail. Claimant has not responded to the motion, which will be granted on default, for the reasons that follow.
Court of Claims Act § 11 (a) (i) requires that if a claim is served upon the Attorney General by mail, it must be accomplished by certified mail, return receipt requested (CMRRR). It is well established that the service requirements of the Court of Claims Act must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 ; Martinez v State of New York, 282 AD2d 580, 580 [2d Dept 2001], lv denied 96 NY2d 720 ). Service of the claim by ordinary mail is insufficient to acquire personal jurisdiction over the defendant (Govan v State of New York, 301 AD2d 757, 758 [3d Dept 2003], lv denied 99 NY2d 510 ), and the failure to effect service by CMRRR is a jurisdictional defect that requires dismissal of the claim (see Turley v State of New York, 279 AD2d 819, 819 [3d Dept 2001], lv denied 96 NY2d 708 , rearg denied 96 NY2d 855 ; Philippe v State of New York, 248 AD2d 827, 827 [3d Dept 1998]).
In support of its motion to dismiss, defendant has demonstrated that the claim was served upon the Attorney General not by CMRRR, but by regular, first-class mail on November 7, 2019 (see Masri Affirmation in Support, ¶ 8, Exhibit B). Although claimant properly served a notice of intention to file a claim on the Attorney General on July 17, 2019, via CMRRR (see Masri Affirmation, ¶ 7, Exhibit A), the envelope in which the claim itself was thereafter served on the Attorney General bears postage indicating that it was served by regular first-class mail, with no indicia that it was served by CMRRR (see id., Exhibit B). The jurisdictional defense of improper service of the claim was raised with particularity in defendant's verified answer, and thus was preserved (see Verified Answer, ¶ Sixth [Fifth Affirmative Defense]; Court of Claims Act § 11 [c]). As noted above, claimant has not responded to the motion, and thus has not controverted defendant's showing that he failed to serve the claim on the Attorney General by CMRRR. Thus, the claim is jurisdictionally defective and must be dismissed.
Accordingly, it is
ORDERED, that defendant's motion number M-97411 is GRANTED, and claim number 133490 is hereby DISMISSED.
November 19, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 133490, filed August 14, 2019;
2. Verified Answer, filed December 10, 2019;
3. Notice of Motion to Dismiss Claim, dated October 18, 2021;
4. Affirmation of Shadi Masri, AAG, in Support of Motion to Dismiss, with Exhibits A-C;
5. Affidavit of Service of Theresa MacPhail, sworn to October 18, 2021.