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Hunter v. State

New York State Court of Claims
Jan 12, 2015
# 2015-049-004 (N.Y. Ct. Cl. Jan. 12, 2015)

Opinion

# 2015-049-004 Claim No. 119584 Motion No. M-85790

01-12-2015

BRYAN C. HUNTER v. THE STATE OF NEW YORK

Bryan C. Hunter, Pro Se By: No Appearance Eric T. Schneiderman, New York State Attorney General By: Douglas H. Squire, Assistant Attorney General


Synopsis

The Court granted defendant's unopposed motion to dismiss inmate's claim. Claimant failed to serve his claim by a manner authorized by statute.

Case information


UID:

2015-049-004

Claimant(s):

BRYAN C. HUNTER

Claimant short name:

HUNTER

Footnote (claimant name) :

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

119584

Motion number(s):

M-85790

Cross-motion number(s):

Judge:

DAVID A. WEINSTEIN

Claimant's attorney:

Bryan C. Hunter, Pro Se By: No Appearance

Defendant's attorney:

Eric T. Schneiderman, New York State Attorney General By: Douglas H. Squire, Assistant Attorney General

Third-party defendant's attorney:

Signature date:

January 12, 2015

City:

Albany

Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant Bryan C. Hunter, an inmate proceeding pro se, alleges by claim filed March 9, 2011 that he was injured when correction officers used excessive force on him while he was incarcerated at Southport Correctional Facility in April 2010.

Defendant now moves to dismiss the claim on the ground that it was not properly served. According to an affirmation submitted in support of defendant's motion by Assistant Attorney General Douglas Squire, Hunter served his claim on the Attorney General on March 9, 2011 by regular mail. Appended to Squire's affirmation are copies of the claim and of the envelope in which it was sent. Those attachments confirm that the claim was sent by regular mail.

Defendant also submits a copy of the verified answer it previously filed and served in this case. That answer asserts in its first affirmative defense that the Court lacks personal jurisdiction over the State, and subject matter jurisdiction over the claim, because the claim was served by regular mail and not by certified mail, return receipt requested or personal service as required by Court of Claims Act § 11.

Court of Claims Act § 11(a)(i) provides in pertinent part that:

"[A] copy [of the claim] shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court."

These service requirements must be "strictly construed" (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]). Compliance with such requirements is a jurisdictional prerequisite for bringing suit in this Court, and service by regular mail therefore compels dismissal (see 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]), as long as the defect is raised with particularity either by a pre-answer motion to dismiss, or in the responsive pleading (Court of Claims Act § 11 [c]).

In the present case, defendant raised claimant's failure to properly serve his claim in its answer, with the particularity required by Court of Claims Act § 11 (c). It has submitted an affirmation attesting to claimant's service via regular mail, and has provided documentary support for that assertion. Claimant, for his part, has made no submission in opposition to this motion.

In view of the foregoing, it is

ORDERED that motion no. M-85790 be granted and that claim no. 119584 be dismissed.

January 12, 2015

Albany, New York

DAVID A. WEINSTEIN

Judge of the Court of Claims

Papers Considered:

1. Defendant's Notice of Motion, Affirmation in Support and annexed exhibits.


Summaries of

Hunter v. State

New York State Court of Claims
Jan 12, 2015
# 2015-049-004 (N.Y. Ct. Cl. Jan. 12, 2015)
Case details for

Hunter v. State

Case Details

Full title:BRYAN C. HUNTER v. THE STATE OF NEW YORK

Court:New York State Court of Claims

Date published: Jan 12, 2015

Citations

# 2015-049-004 (N.Y. Ct. Cl. Jan. 12, 2015)