Opinion
# 2016-040-034 Claim No. 127320 Motion No. M-88176
05-25-2016
DEON LAWRENCE #14A1821 v. STATE OF NEW YORK
Deon Lawrence, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Belinda A. Wagner, Esq., AAG
Synopsis
State's motion to dismiss Claim granted. Claim served by regular mail, not certified mail, return receipt requested or personal service as required by CCA.
Case information
| UID: | 2016-040-034 |
| Claimant(s): | DEON LAWRENCE #14A1821 |
| Claimant short name: | LAWRENCE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | Caption amended to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127320 |
| Motion number(s): | M-88176 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Deon Lawrence, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Belinda A. Wagner, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | May 25, 2016 |
| 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 January 6, 2016, asserts that Claimant was released from custody to parole supervision on April 17, 2015 and on April 25, 2015 was found to have consumed alcohol and subsequently his parole was violated. The Claim further asserts that Claimant's parole officer acted improperly and in dereliction of his duty as a parole officer in improperly finding that Claimant violated the conditions of his parole. Claimant also seeks to have his parole violation "lifted" (Claim, handwritten p. 7).
Defendant seeks dismissal of the Claim on three grounds: (1) that the Court of Claims is not a Court of equity and cannot "lift" the parole violation (Affirmation of Belinda A. Wagner, Esq., Assistant Attorney General [hereinafter, "Wagner Affirmation"], ¶ 4); (2) that Claimant failed to serve the Claim upon Defendant in the manner required by Court of Claims Act § 11(a)(i) (Wagner Affirmation, ¶ 5); and (3) that the Claim fails to meet the requirements of Court of Claims Act § 11(b) in that the Claim does not state the time when and the place where the Claim arose (Wagner Affirmation, ¶ 7). 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 her affirmation submitted in support of the Motion, Defense counsel asserts that, on January 21, 2016, Claimant served the Claim upon the Attorney General by regular mail (Wagner Affirmation, ¶ 3 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 $.98 and that there is no certified mail or return receipt sticker affixed to either the front or the back of the envelope. The Court also notes that it was mailed to the Attorney General's Office in New York City and is stamped "Received Criminal Appeals Unit NYC Office - January 20, 2016." Thus, it appears that the Claim was served on January 20, not January 21, 2016. Claimant did not oppose the State's Motion.
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.
May 25, 2016
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 Papers filed: Claim