Opinion
# 2020-015-050 Claim No. 132269 Motion No. M-95157
05-06-2020
MOISES MALDONADO v. THE STATE OF NEW YORK
No Appearance Honorable Letitia James, Attorney General By: Michael C. Rizzo, Esq., Assistant Attorney General
Synopsis
Defendant's motion to dismiss the claim for improper service of the claim was granted, and the claim dismissed.
Case information
| UID: | 2020-015-050 |
| Claimant(s): | MOISES MALDONADO |
| Claimant short name: | MALDONADO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132269 |
| Motion number(s): | M-95157 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | No Appearance |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Michael C. Rizzo, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 6, 2020 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss the claim on the ground it was not served in the manner required by Court of Claims Act § 11.
Claimant, a pro se inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), seeks damages for negligent supervision arising from DOCCS' alleged failure to protect him from an assault by another inmate at Washington Correctional Facility on July 30, 2018. Defendant's prior motion to dismiss the claim was denied, inter alia, because the envelope produced by the defendant in order to demonstrate improper service of the claim was illegible. Defendant supports the instant motion with a clearer copy of the envelope in which the Claim was mailed (see defendant's Exhibit B).
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 § 10 and § 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 is insufficient to acquire jurisdiction over the defendant (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]; Govan v State of New York, 301 AD2d 757 [3d Dept 2003], lv denied 99NY2d 510 [2003]).
Defense counsel established through his own affidavit and submission of a copy of the envelope in which the claim was mailed that it was not sent certified mail, return receipt requested. Inasmuch as the defendant preserved its objection to the manner of service by raising it in a pre-answer dismissal motion (Court of Claims Act § 11 [c]), the claim must be dismissed.
Based on the foregoing, the defendant's motion is granted, and the claim is dismissed, without opposition.
May 6, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered: 1. Notice of Motion dated January 14, 2020; 2. Affirmation in support dated January 14, 2020, with Exhibits A and B.