Opinion
# 2015-040-064 Claim No. 126684 Motion No. M-87567
12-21-2015
JOHNSON v. THE STATE OF NEW YORK
Robert W. Johnson, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael Rizzo, Esq., AAG
Synopsis
Claim dismissed as it was served by 1st class mail not by certified mail, return receipt requested, or by personal service as required by the CCA.
Case information
| UID: | 2015-040-064 |
| Claimant(s): | ROBERT W. JOHNSON 04B1515 |
| Claimant short name: | JOHNSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126684 |
| Motion number(s): | M-87567 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Robert W. Johnson, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael Rizzo, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | December 21, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's pre-Answer Motion to dismiss the Claim based upon lack of jurisdiction for failure to comply with the service requirements of Court of Claims Act §§ 10 and 11 is granted and the remainder of the motion is denied as moot.
This pro se Claim, which was filed with the Clerk of the Court on September 3, 2015, asserts that, on August 7, 2015, Claimant filed an inmate grievance concerning a time assessment at Franklin Correctional Facility located in Malone, New York (hereinafter, "Franklin"). He asserts that he completed all rehabilitation programs mandated by the New York State Department of Corrections and Community Supervision (hereinafter, "DOCCS"). Claimant asserts that a grievance hearing has not yet been conducted. Claimant asserts that Defendant has violated his due process rights, has shown deliberate indifference and abused its discretion (Claim, ¶ 5).
Defendant seeks dismissal of the Claim on two grounds: (1) that the Claim fails to meet the requirements of Court of Claims Act § 11(b) in that the Claim does not provide a "clear understanding of the alleged wrongs complained of … or the related legal basis for [Claimant's] allegations" (Affirmation of Michael Rizzo, Esq., Assistant Attorney General [hereinafter, "Rizzo Affirmation"], ¶ 5); and (2) that Claimant failed to serve the Claim upon Defendant in the manner required by Court of Claims Act § 11(a)(i) (Rizzo Affirmation, ¶ 13). As pertinent to the instant matter, Court of Claims Act § 11(a)(i) provides that the Claim be served personally or by certified mail, return receipt requested, upon the Attorney General within the time period provided in Court of Claims Act § 10(3).
The Court will address the second prong of the motion to dismiss first. In his affirmation submitted in support of the Motion, Defense counsel asserts that, on or about September 10, 2015, Claimant served the Claim upon the Attorney General by regular first-class mail (Rizzo Affirmation, ¶ 14 and Ex. A attached thereto). In reviewing Exhibit A, which includes a photocopy of the envelope in which the Claim was purportedly mailed, the Court notes that the postage amounted to $.70 and that there is no certified mail or return receipt sticker affixed to either the front or the back of the envelope. Moreover, Claimant, in his opposition papers, asserts that he "utilized the postal service" in serving the Attorney General and the Attorney General "did receive" the Claim (Claimant's "affirmation" ¶15). He also states that his "manner of service upon the [D]efendant should be granted" as the Attorney General received the Claim (id., ¶17). Claimant did not state that he served the Claim by certified mail return receipt requested or by personal service as required by Court of Claims Act § 11(a)(i), nor did he submit documentary proof that the Claim was served by certified mail return receipt requested.
The failure to properly serve the Attorney General gives rise to a defect in jurisdiction which, if not raised with particularity, is subject to the waiver provisions of Court of Claims Act § 11(c) (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]; Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
Section 11 of the Court of Claims Act constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State and, thus, must be strictly construed (Buckles v State of New York, 221 NY 418 [1917]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], appeal denied 64 NY2d 607 [1985]). The Court cannot waive a defect in jurisdiction that has been timely raised (Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). Defendant timely and properly raised, with particularity, its defense that the Claim was delivered by regular mail, not served personally or by certified mail, return receipt requested, as required by Court of Claims Act § 11(a) in this pre-Answer motion. Therefore, the Court concludes that Defendant established that the Claim was improperly served upon it.
Based upon the foregoing, Defendant's motion is granted and the Claim is hereby dismissed for failure to properly serve it upon the Attorney General as required by Court of Claims Act § 11(a)(i). The remainder of the motion is denied as moot.
December 21, 2015
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Defendant's motion for dismissal: Papers Numbered Notice of Motion, Affirmation and Exhibit attached 1 Claimant's "Notice of Motion to Answer Defendant," "Affirmation in Support" & Exhibits attached 2 Papers filed: Claim