Opinion
# 2020-015-077 Claim No. 131543 Motion No. M-95811
09-21-2020
DARRYL LITTLEJOHN v. STATE OF NEW YORK
No Appearance Honorable Letitia James, Attorney General By: Glenn C. King, Esq., Assistant Attorney General
Synopsis
Defendant's motion to dismiss claim for improper service by regular mail was granted.
Case information
| UID: | 2020-015-077 |
| Claimant(s): | DARRYL LITTLEJOHN |
| Claimant short name: | LITTLEJOHN |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131543 |
| Motion number(s): | M-95811 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | No Appearance |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Glenn C. King, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 21, 2020 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves for dismissal on the ground the claim was not served in the manner required by Court of Claims Act § 11.
On June 8, 2018 claimant, a pro se inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), filed a claim seeking damages for the loss of certain personal property which was entrusted to DOCCS' personnel for safekeeping but not returned.
Defendant contends in support of its motion that the claim was not served by personal delivery or certified mail, return receipt requested, as required by the Court of Claims Act § 11 (a) (i).
Court of Claims Act § 11 (a) (i) requires that a claim 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 . . .". Inasmuch as the filing and service requirements of Court of Claims Act § 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 [1981]; see also Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). Absent waiver of the defense of improper service of the claim (Court of Claims Act § 11 [c]), service of the claim by ordinary mail or any other method not in strict compliance with § 11 (a) (i) 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, 133 AD3d 1049 [3d Dept 2015], lv denied 26 NY3d 919 [2016]; 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 [2007]; Govan v State of New York, 301 AD2d 757 [3d Dept 2003], lv denied 99 NY2d 510 [2003]).
Defendant established through submission of a copy of the claimant's affidavit of service (defendant's Exhibit B) that the claim was served "via regular first class mail" rather than certified mail, return receipt requested, as required by Court of Claims Act § 11 (a) (i). Inasmuch as the defendant preserved its objection to the manner of service by raising it as the seventh affirmative defense in its answer (Court of Claims Act § 11 [c]), the claim must be dismissed.
A copy of the envelope in which the claim was served was not submitted as part of defendant's Exhibit A as defense counsel indicated in his Affirmation in Support. --------
Accordingly, the defendant's motion is granted, and the claim is dismissed.
September 21, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of Motion dated August 12, 2020;
2. Affirmation in support dated August 12, 2020, with Exhibits A-D.