Opinion
# 2017-015-287 Claim No. 128225 Motion No. M-91291
11-28-2017
WALSHION CHARLESTON v. THE STATE OF NEW YORK
No Appearance Honorable Eric T. Schneiderman, Attorney General By: Douglas R. Kemp, Esq. Assistant Attorney General
Synopsis
Claim was dismissed for improper service.
Case information
| UID: | 2017-015-287 |
| Claimant(s): | WALSHION CHARLESTON |
| Claimant short name: | CHARLESTON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128225 |
| Motion number(s): | M-91291 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | No Appearance |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Douglas R. Kemp, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 28, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss the claim for improper service pursuant to CPLR 3211 (a) (2) and (8).
Claimant, proceeding pro se, seeks damages for defendant's failure to provide him with a gluten-free diet during his incarceration at Coxsackie Correctional Facility. Defendant contends in support of its motion that the claim was served by ordinary mail rather than personal service or certified mail, return receipt requested, as required by Court of Claims Act §11 (a) (i). Defendant supports its motion with a copy of the envelope in which the claim was mailed, which displays none of the indicia of a certified mailing (see defendant's Exhibit A).
Court of Claims Act §11 (a) (i) requires that a claim be filed with the Clerk of the Court and that "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 §§ 10 and 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 is insufficient to acquire jurisdiction over the defendant (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]; Thompson v State of New York, 286 AD2d 831 [3d Dept 2001]).
Defendant established, through submission of a copy of the envelope in which it was mailed, that the claim was improperly served by ordinary mail rather than one of the methods prescribed by Court of Claims Act § 11 (a) (i). Moreover, the affidavit of service of the claim filed in the Office of the Clerk of the Court of Claims indicates only that an unspecified paper was sent to the Clerk of the Court of Claims; no affidavit relating to service of the claim on the Attorney General was filed. Inasmuch as the defendant preserved its objection to the manner of service by raising it as an affirmative defense in its answer, the claim must be dismissed.
Accordingly, the defendant's motion is granted and the claim is dismissed, without opposition.
November 28, 2017
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of Motion by Douglas R. Kemp, Esq., dated October 27, 2017;
2. Affirmation in Support of Motion, dated October 27, 2017 with exhibits A and B.