Opinion
# 2017-038-557 Claim No. 129570 Motion No. M-90331
09-06-2017
ELLIOT MAY, #10A4108 v. STATE OF NEW YORK
ELLIOT MAY, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Jeane L. Strickland Smith, Assistant Attorney General
Synopsis
Defendant's motion to dismiss due to service of claim by regular mail granted.
Case information
| UID: | 2017-038-557 |
| Claimant(s): | ELLIOT MAY, #10A4108 |
| Claimant short name: | MAY |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129570 |
| Motion number(s): | M-90331 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | ELLIOT MAY, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Jeane L. Strickland Smith, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 6, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, filed this claim alleging that he was wrongfully confined in a Special Housing Unit (SHU) at Green Haven Correctional Facility from October 10 to December 20, 2016. Defendant moves in lieu of answer to dismiss the claim for lack of jurisdiction due to claimant's failure to properly serve the claim and because it fails to state a cause of action. Claimant has not submitted opposition to the motion.
Court of Claims Act § 11 (a) (i) requires that if a claim is served upon the Attorney General by mail, such service must be accomplished by certified mail, return receipt requested (CMRRR). The service requirements of the Court of Claims Act must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]), and the failure to effect service by CMRRR requires dismissal of the claim (see Turley v State of New York, 279 AD2d 819 [3d Dept 2001], lv denied 96 NY2d 708 [2001]; Philippe v State of New York, 248 AD2d 827 [3d Dept 1998]; Estrella v State of New York, UID No. 2008-018-634 [Ct Cl, Fitzpatrick, J., Sept. 3, 2008]; Desenclos v State of New York, UID No. 2007-042-514 [Ct Cl, Siegel, J., July 23, 2007]). Defendant preserved this jurisdictional defense by asserting in its answer that the claim was improperly served (see Court of Claims Act § 11 [c] [ii]; Verified Answer, Eighth Defense).
In support of its motion to dismiss, defendant has demonstrated that the claim was served upon the Attorney General by regular first class mail, not by CMRRR (see Strickland Smith Affirmation, ¶ 3, Exhibit A), and claimant has not controverted this showing. Thus, claimant failed to comply with the service requirements of the Court of Claims Act and the claim must be dismissed on jurisdictional grounds. Defendant's argument that the claim fails to state a cause of action need not be addressed. Accordingly, it is
ORDERED, that motion number M-90331 is GRANTED, and claim number 129570 is DISMISSED.
September 6, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 129570, filed April 13, 2017; (2) Notice of motion, dated April 19, 2017; (3) Affirmation of Jeane L. Strickland Smith, AAG, dated April 19, 2017, with Exhibit A; (4) Affidavit of Service of Joann Mylod, sworn to April 19, 2017.