Opinion
# 2011-041-046 Claim No. 119963 Motion # 2011-041-046 Claim No. M-80442 # 2011-041-046 Claim No. M-80494
12-14-2011
PATEL v. THE STATE OF NEW YORK
Synopsis
Service of claim upon Attorney General by regular mail is insufficient to obtain jurisdiction over defendant. Claimant's application for assignment of counsel denied as moot. Case information
UID: 2011-041-046 Claimant(s): VINOD PATEL, 07-A-2244 Claimant short name: PATEL Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant The caption has been amended sua sponte to reflect the name) : only proper defendant. Third-party claimant (s): Third-party defendant (s): Claim number(s): 119963 Motion number(s): M-80442, M-80494 Cross-motion number(s): Judge: FRANK P. MILANO VINOD PATEL Claimant's attorney: Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General Defendant's attorney: By: Thomas R. Monjeau, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: December 14, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant moves to dismiss the claim based upon claimant's alleged failure to properly serve the claim upon the Attorney General. Claimant opposes the defendant's application and separately moves for appointment of counsel.
Defendant has submitted proof that the claim was served upon the Attorney General by regular mail. The claimant concedes that the claim was served by regular mail.
Court of Claims Act § 11 (a) (i), provides, at relevant part:
"[A] copy [of the claim] shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court."
Claimant is required to satisfy the "literal notice requirements of Court of Claims Act § 11" (Femminella v State of New York, 71 AD3d 1319 [3d Dept 2010]). Any manner of service other than personal service or certified mail, return receipt requested, is insufficient to strictly fulfill the statutory criteria (Femminella, 71 AD3d at 1319).
Service of a claim by regular mail upon the Attorney General is insufficient to obtain personal jurisdiction over the defendant (Fulton v State of New York, 35 AD3d 977, 978 [3d Dept 2006], lv denied 8 NY3d 809 [2007]; see Govan v State of New York, 301 AD2d 757, 758 [3d Dept 2003], lv denied 99 NY2d 510 [2003]; Thompson v State of New York, 286 AD2d 831 [3d Dept 2001]; Turley v State of New York, 279 AD2d 819 [3d Dept 2001], lv denied 96 NY2d 708 [2001], rearg denied 96 NY2d 855 [2001]).
The defendant's motion is granted and the claim is dismissed. Claimant's application for appointment of counsel is denied as moot.
December 14, 2011
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Affirmation of Thomas R. Monjeau, dated September 1, 2011, and annexed exhibits;
2. Affidavit of Vinod Patel, sworn to September 13, 2011, and annexed exhibits;
3. Application for the Appointment of Counsel, filed October 11, 2011;
4. Affirmation of Thomas R. Monjeau, dated November 2, 2011, and annexed exhibit;
5. Verified Reply of Vinod Patel, affirmed November 7, 2011, and annexed exhibits.