Opinion
# 2021-015-041 Claim No. 132355 Motion No. M-96451
04-13-2021
JEREMIAH F. HERBERT v. STATE OF NEW YORK
No Appearance Honorable Letitia James, Attorney General By: Christopher J. Kalil, Esq., Assistant Attorney General
Synopsis
Claim was dismissed for improper service.
Case information
| UID: | 2021-015-041 |
| Claimant(s): | JEREMIAH F. HERBERT |
| Claimant short name: | HERBERT |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132355 |
| Motion number(s): | M-96451 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | No Appearance |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Christopher J. Kalil, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 13, 2021 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss pursuant to CPLR 3211 (a) (2), (7) and (8) on the ground the claim was not served in the manner required by Court of Claims Act § 11 (a) (i).
Claimant, proceeding pro se, seeks damages for abusive treatment and a "sexual advance" by corrections staff at Hale Creek Correctional Facility on October 23, 2018 and November 2, 2018 (defendant's Exhibit A).
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 jurisdictional requirements of Court of Claims Act § 11 (a) (i).
Court of Claims Act § 11 (a) (i) requires that the 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 § 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 a method not in strict compliance with § 11 (a) (i) is insufficient to acquire jurisdiction over the defendant (Wright v State of New York, 181 AD3d 1332 [4th 2020], lv denied 185 AD3d 1482 [4th Dept 2020], lv denied 187 AD3d 1605 [4th Dept 2020], lv denied 35 NY3d 919 [2020], rearg denied 36 NY3d 1048 [2021]; 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]). Defendant established through the submission of a copy of the envelope in which the claim was mailed (defendant's Exhibit A, copy of envelope attached to claim), that the claim was not served by certified mail, return receipt requested, as required by Court of Claims Act § 11 (a) (i). The envelope contains none of the indicia of a certified mailing and by all appearances was sent by ordinary First Class mail. Inasmuch as the defendant preserved its objection to the manner of service by raising it as the sixth affirmative defense in its answer (defendant's Exhibit B, ¶ 11), the claim must be dismissed.
Accordingly, the defendant's motion is granted, and the claim is dismissed.
April 13, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of Motion dated February 8, 2021;
2. Affirmation in support dated February 8, 2021, with Exhibits A and B.