Opinion
# 2015-038-582 Claim No. 125858 Motion No. M-87033 Cross-Motion No. CM-87132
12-09-2015
CHO WESTLEY DIXON v. THE STATE OF NEW YORK
ECHO WESTLEY DIXON, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Paul F. Cagino, Assistant Attorney General
Synopsis
Claimant's motion for various forms of relief denied. Service of the claim by other than CMRRR divests the Court of jurisdiction, and the Court is without power to "sustain" jurisdiction over the claim notwithstanding its improper service. The jurisdictional defect cannot be cured by an amended claim, and claimant's request for permission to amend his claim cannot be granted because claimant does not state how he intends to amend the claim, nor did he support motion with a proposed amended claim. Relief in the nature of construing a notice of intention to file a claim as the claim, and permission to file and serve late claim is not available on an inmate property claim. Defendant's motion to dismiss the claim on jurisdictional grounds due to improper service granted.
Case information
| UID: | 2015-038-582 |
| Claimant(s): | ECHO WESTLEY DIXON |
| Claimant short name: | DIXON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125858 |
| Motion number(s): | M-87033 |
| Cross-motion number(s): | CM-87132 |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | ECHO WESTLEY DIXON, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Paul F. Cagino, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 9, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, seeks compensation for two pairs of sneakers and two decks of cards that he alleges were either lost or stolen by correctional facility staff. Claimant has submitted a letter, which has been treated as a motion, in which he requests that the Court subpoena documents and investigate claimant's allegations that staff at the Correspondence Office at Upstate Correctional Facility (CF) have been mishandling his outgoing mail. Claimant also requests that the Court "sustain" jurisdiction over the claim notwithstanding its improper service, that he be given permission to amend his claim, and that the Court construe his letter/motion as a "notice of intent to file a claim and late claim" (see Correspondence, dated May 6, 2015, at p. 2). Defendant opposes claimant's submission, and cross-moves for an order dismissing the claim on ground that it was not properly served.
The Court is an adjudicative body, not an investigative office, and any request that it issue subpoena on its own motion or conduct an investigation will not be granted.
The Court of Claims Act requires that "a copy [of the claim] shall be served personally or by certified mail, return receipt requested, upon the attorney general" (Court of Claims Act § 11 [a] [i] [emphasis added]). 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 mail service by certified mail, return receipt requested (CMRRR) is a jurisdictional defect that requires dismissal of the claim (see Miranda v State of New York, 113 AD3d 943, 943-944 [3d Dept 2014]; Filizof v State of New York, 45 AD3d 1405, 1406 [3d Dept 2007]). Here, defendant's answer raised with particularity the defective manner of service of the claim (see Verified Answer, Third Defense; see also Court of Claims Act § 11 [c]), and defendant has demonstrated that the claim was not, in fact, served by CMRRR (see Cagino Affirmation, ¶ 16; Exhibit B). Although the "affirmation" of service that was filed with the claim asserts that mail service was effected by CMRRR (see Dixon "Affirmation," undated), it is lacking in evidentiary value as claimant is a party to the action, and the document is unsworn and claimant has not demonstrated that he is a person authorized to submit an affirmation in lieu of affidavit (see CPLR 2106). Thus, the motion seeking dismissal of the claim must be granted.
The remaining requests in claimant's submission do not save this claim from dismissal. As noted above, the failure to properly serve the claim divests the Court of jurisdiction, and the Court is without power to "sustain" jurisdiction over the claim notwithstanding its improper service. To the extent that claimant may wish to amend his claim to address any jurisdictional deficit, defendant correctly asserts that such a cure is unavailable (see Hogan v State of New York, 59 AD3d 754, 755 [3d Dept 2009]). Further, claimant's request for permission to amend his claim cannot be granted because claimant does not state how he intends to amend the claim and he has not supported his request with a proposed amended claim (see CPLR 3025 [b]; Williams v State of New York, UID No. 2014-038-563 [Ct Cl, DeBow, J., Dec. 19, 2014]). Finally, claimant's request that his letter/motion be construed as a notice of intention to file a claim and a late claim, but neither of those forms of relief are available on an inmate property claim (see Young v State of New York and New York State Dept. of Corr. Servs., UID No. 2014-038-515 [Ct Cl, DeBow, J., Apr. 21, 2014]).
Accordingly, it is
ORDERED, that claimant's motion number M-87033 is DENIED, and it is further
ORDERED, that defendant's cross motion number CM-87132 is GRANTED, and claim number 125858 is DISMISSED.
December 9, 2015
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim Number 125858, filed March 26, 2015 with Affirmation of Service of Echo Westley Dixon, undated; (2) "Affirmation" of Service of Echo Westley Dixon, undated; (3) Verified Answer, filed May 5, 2015; (4) Correspondence of Echo Westley Dixon (M-87033), dated May 6, 2015, with attachments; (5) Notice of Cross-Motion to Dismiss, dated August 11, 2015; (6) Affirmation of Paul F. Cagino, AAG, in Opposition to Claimant's Motion to Amend Claim and in Support of Defendant's Cross-Motion to Dismiss, dated August 11, 2015, with Exhibits A-C).