Opinion
# 2021-032-010 Claim No. 132711 Motion No. M-95680
01-13-2021
JOSE SANTIAGO GONZALEZ v. STATE OF NEW YORK
No Appearance Hon. Letitia James, Attorney General By: Christina Calabrese, AAG
Synopsis
The claim is dismissed for claimant's failure to serve the claim by certified mail, return receipt requested.
Case information
| UID: | 2021-032-010 |
| Claimant(s): | JOSE SANTIAGO GONZALEZ |
| Claimant short name: | GONZALEZ |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132711 |
| Motion number(s): | M-95680 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | No Appearance |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Christina Calabrese, AAG |
| Third-party defendant's attorney: | |
| Signature date: | January 13, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed the instant claim with the Clerk of the Court on February 28, 2019. Thereafter, defendant timely filed and served an answer, asserting as its first affirmative defense that the Court lacks subject matter jurisdiction over the claim for claimant's failure to serve the claim by certified mail, return receipt requested as required by Court of Claims Act § 11 (a). Defendant now moves to dismiss the claim.
Court of Claims Act § 11 (a) (i) states, in pertinent part, that the claim shall be filed with the Clerk of the Court, and a copy shall be served upon the Attorney General within the times provided for filing with the Clerk of the Court either personally or by certified mail, return receipt requested. Compliance with the filing and service requirements contained in the Court of Claims Act is a jurisdictional prerequisite to bringing and maintaining an action in the Court of Claims (Buckles v State of New York, 221 NY 418 [1917]), and failure to comply constitutes a fatal jurisdictional defect requiring dismissal (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]; Suarez v State of New York, 193 AD2d 1037 [3d Dept. 1993]). Any objection or defense based upon the failure to comply with the manner of service requirements is waived unless raised, with particularity, either by a motion to dismiss made before the service of the responsive pleading is required or in the responsive pleading (Court of Claims Act § 11 [c] [ii]).
In support of its motion to dismiss, defendant states that the envelope in which the claim was mailed shows that the claim was mailed by regular United States mail. Defendant submits a true and accurate copy of the envelope in which the claim was mailed in support of its motion, (Exhibit B), and argues that because claimant failed to properly serve his claim upon defendant, the Court lacks jurisdiction and the claim must be dismissed. The Court agrees. The copy of the envelope submitted as an exhibit to the instant motion establishes that the claim was served by regular first-class mail (id.). It is well-established that "[a]lternative mailings which do not equate to certified mail, return receipt requested, are inadequate and do not comply with Court of Claims Act § 11 (a)" (Hodge v State of New York, 213 AD2d 766, 767 [3d Dept. 1995] [citations omitted]). Therefore, the Court finds that claimant's service of the claim by first-class mail is insufficient to confer jurisdiction with this Court. Claimant has not responded to defendant's motion, despite claimant's burden to establish proper service by a preponderance of the credible evidence once service has been challenged (see Caci v State of New York, 107 AD3d 1121, 1124 [3d Dept. 2013]).
Based upon the foregoing, claimant's motion to dismiss the claim (M-95680) is granted and claim number 132711 is dismissed.
January 13, 2021
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion to Dismiss, dated March 13, 2020; and Affirmation in Support of Motion to Dismiss, affirmed by Christina Calabrese, AAG on March 13, 2020 with Exhibits A through C annexed thereto.