Opinion
# 2020-015-068 Claim No. 132158 Motion No. M-95661
08-21-2020
GARY MURPHY v. STATE OF NEW YORK
John Dale Cadore, Esq. Honorable Letitia James, Attorney General By: Christopher J. Kalil, Esq., Assistant Attorney General
Synopsis
Claim was dismissed for improper service.
Case information
| UID: | 2020-015-068 |
| Claimant(s): | GARY MURPHY |
| Claimant short name: | MURPHY |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132158 |
| Motion number(s): | M-95661 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | John Dale Cadore, Esq. |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Christopher J. Kalil, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 21, 2020 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves for dismissal on the ground the claim was not served in the manner required by Court of Claims Act § 11.
Claimant, a former inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), filed the instant claim for personal injuries sustained in a slip and fall accident at Marcy Correctional Facility on December 18, 2017.
Defendant contends in support of its motion that the claim was not served by personal delivery or certified mail, return receipt requested, as required pursuant to the jurisdictional requirements of Court of Claims Act § 11 (a) (i).
Court of Claims Act § 11 (a) (i) requires that a 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 § 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 (Court of Claims Act § 11 [c]), service of the claim by ordinary mail or a method which does not strictly comply with the requirements of Court of Claims Act § 11 (a) (i) 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 99 NY2d 510 [2003]).
Defendant established through submission of a copy of the envelope in which the claim was mailed (defendant's Exhibit A) that the claim was not served by certified mail, return receipt requested, as required by Court of Claims Act § 11 (a) (i). The envelope contains no indicia of a certified mailing and the postage utilized to mail the claim (89 cents) is plainly inadequate to accomplish a certified mailing requiring a return receipt. In opposition to the motion, claimant's counsel relies upon the waiver provision of Court of Claims Act § 11 (c) (iii) to support his contention that dismissal for improper service would be unjust. However, Court of Claims Act § 11 (c) (iii) pertains to the verification requirements of Court of Claims Act § 11 (b), not the service requirements of Court of Claims Act § 11 (a). Moreover, defendant preserved its objection to the manner of service by raising it as its seventh affirmative defense in the answer (see Court of Claims Act § 11 [c] [ii]). Accordingly, the defendant's motion is granted, and the claim is dismissed.
August 21, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of Motion dated July 13, 2020;
2. Affirmation in support dated July 13, 2020, with Exhibits A and B;
3. Claimant['s] Answer to Defendant's Motion to Dismiss dated Aug. 17, 2020;
4. Affirmation of John D. Cadore, Esq. dated Aug. 17, 2020.