Opinion
# 2011-038-556 Claim No. 119149 Motion No. M-79836 Cross-Motion No. CM-79837
09-14-2011
SPAULDING v. THE STATE OF NEW YORK
Synopsis
Claimant's motion for striking of defendant's answer and summary judgment denied, and defendant's cross motion to dismiss granted. Claim was served upon Attorney General by ordinary first class mail, and thus, the claim was a nullity. Proper service of supplemental claim, which merely added new allegations and a cause of action to the initial claim, did not provide jurisdiction over the claim. Case information
UID: 2011-038-556 Claimant(s): LEIGHTON SPAULDING Claimant short name: SPAULDING Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119149 Motion number(s): M-79836 Cross-motion number(s): CM-79837 Judge: W. BROOKS DeBOW Claimant's attorney: LEIGHTON SPAULDING, Pro se ERIC T. SCHNEIDERMAN, Attorney General Defendant's attorney: of the State of New York By: Michael T. Krenrich, Assistant Attorney General Third-party defendant's attorney: Signature date: September 14, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
This claim by an individual who is incarcerated in a State correctional facility seeks compensation for personal injuries allegedly sustained as a result of "the contract at Upstate Correctional Facility's . . . Segregation Unit for the purpose of conducting an extensive 2 ½ years and ongoing nontherapeutic experimentation research program of a sexual nature, amounting to kidnapping and labor of a human being as a commodity, i.e., slavery" (Claim, ¶ 5). The claim alleges various acts by defendant's employees, including entering into a contract with a Dr. Hynes-Hayes to use claimant as a research subject (id., ¶ 11) "in an extensive testicle, drug and colon experimentation program" (id., ¶ 17), entrapping claimant by subjecting him to a "sexual pat frisk" to provoke a response by claimant that would result in extending his time in the Special Housing Unit (id., ¶¶ 15, 18), using surveillance equipment that allowed constant monitoring of claimant's mind and brain activity (id., ¶ 20), and using a sensor to burst his left eardrum (id., ¶ 20-c), along with other alleged improper conduct. Claimant subsequently filed and served a "supplemental claim," in which he alleges that defendant's agents engaged in intentional tortious conduct with regard to their handling of his outgoing mail and other acts intended to obstruct claimant's prosecution of this claim. Claimant moves for relief in the nature of striking defendant's answer and awarding summary judgment to claimant. Defendant opposes claimant's motion, and cross-moves to dismiss the claim on the grounds that it was not properly served, that it is untimely, and that it fails to state a cause of action.
Prior relief sought by claimant in the nature of poor person status and assignment of counsel was granted in part and denied (see Order, dated December 9, 2010, granting reduced filing fees [Sise, P.J.], and Decision and Order, UID #20011-038-529, Claim No. 119149, M-79621, DeBow, J. [May 16, 2011] [denying assignment of counsel]). Further, to the extent that claimant's request for an order directing that he be produced for oral argument on the instant motions is properly before the Court (see Correspondence dated May 17, 2011), it is denied. In the absence of exceptional circumstances, motions in this Court are decided upon written submissions (see 22 NYCRR § 206.9 [c]). Neither claimant's request to appear nor his pleadings demonstrate the necessity of oral argument, the papers submitted on the motion are sufficient to permit decision thereon, and oral argument on the motions was not held. Finally, to the extent that claimant has again requested poor person relief in the nature of having the Clerk of the Court of Claims reproduce claimant's exhibits for service upon the Attorney General (see Undated Correspondence, received April 20, 2011), such relief will be denied as claimant has not demonstrated any legal or factual basis upon which such relief may be granted.
Both claimant's motion and defendant's cross-motion rest on the manner of service of the claim. Court of Claims Act § 11(a)(i) requires that if a claim is served upon the Attorney General by mail, it must be served by certified mail, return receipt requested. Service of the claim by ordinary mail is a nullity (see Fulton v State of New York, 35 AD3d 977, 978 [3d Dept 2006], lv denied 8 NY3d 809 [2007]), and such service is insufficient to acquire personal jurisdiction over the defendant (see Govan v State of New York, 301 AD2d 757, 758 [3d Dept 2003], lv denied 99 NY2d 510 [2003]). 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 [1989]), and the failure to effect service by certified mail, return receipt requested requires dismissal of the claim (see Turley v State of New York, 279 AD2d 819 [3d Dept 2001], lv denied 96 NY2d 708 [2001]; Philippe v State of New York, 248 AD2d 827 [3d Dept 1998]; Estrella v State of New York, UID #2008-018-634, Claim #114966, Motion No. M-75052, Fitzpatrick, J. [Sept. 3, 2008]; Desenclos v State of New York, UID #2007-042-514, Claim #113383, Motion No. M-73161, Siegel, J. [July 23, 2007]).
The second affirmative defense asserted by defendant in both its initial answer and its supplemental answer is that the claim was improperly served by first class mail and not certified mail, return receipt requested. Claimant's motion for summary judgment disputes the veracity of those affirmative defenses, and claimant contends that the claim and supplemental claim were served by certified mail, return receipt requested on November 26, 2010 and November 29, 2010, respectively (see Spaulding Affidavit, sworn to Dec. 30, 2010, ¶¶ 5, 8). Although claimant attaches exhibits in the form of correspondence from the United States Postal Service which demonstrate that items sent by certified mail were delivered to "J Hasson" and "M Salazar" in Albany, New York on those dates, claimant's documentation does not demonstrate that the items that were sent by certified mail were the initial pleading for this claim. To the contrary, defendant's exhibits demonstrate conclusively that while a notice of intention to file a claim and a supplemental notice of intention were served by certified mail (see Krenrich Affirmation, Exhibits A and B), the claim was served by regular first class mail on November 8, 2010 (see id. Exhibit C). The supplemental claim was served by certified mail, return receipt requested on November 18, 2010 and again on November 29, 2010 (see id. Exhibits D and F). However, as noted above, the claim is a nullity because it was improperly served by first class mail, and subsequent proper service of a supplemental claim - which merely adds allegations of a different nature to the initial claim - does not cure the defect in personal jurisdiction that flows from the improper service of the original claim.
The Court is not oblivious to the fact that claimant's supplemental claim alleges that the defect in personal jurisdiction is due to the intentional conduct of defendant's employees. Claimant erred, however, in asserting this alleged tort in a supplement to the jurisdictionally defective claim rather than by a new, independent claim.
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Because this claim must be dismissed due to improper service of the claim, defendant's alternative arguments for dismissal of the claim need not be addressed. Accordingly, it is
ORDERED, that claimant's motion number M-79836 is DENIED in all respects, and it is further
ORDERED, that defendant's cross motion number CM-79837 is GRANTED, and claim number 119149 is DISMISSED.
September 14, 2011
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Claim No. 119149, filed November 9, 2010;
(2) Supplemental Claim, filed November 19, 2010;
(3) Verified Answer, filed December 15, 2010;
(4) Supplemental Verified Answer, file December 23, 2010;
(5) Notice of Motion for Summary Judgement, undated and filed April 20, 2011;
(6) Affidavit in Support of Motion for Summary Judgement, sworn to December 30, 2010, with exhibits;
(7) Claimant's Memorandum of Law, dated April 19, 2011;
(8) Correspondence of Leighton Spaulding, undated and received April 20, 2011 and May 13, 2011;
(9) Correspondence of Leighton Spaulding, dated May 17, 2011;
(10) Notice of Cross-Motion, dated April 29, 2011;
(11) Affirmation in Opposition of [sic] Claimant's Motion for Summary Judgment
and in Support of Defendant's Cross-Motion to Dismiss, dated April 29, 2011, with Exhibits A-I.