Opinion
# 2015-041-003 Claim No. 117324 Motion No. M-85769
01-07-2015
KAHENE PETERKIN v. THE STATE OF NEW YORK
KAHENE PETERKIN Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Jessica Hall, Esq. Assistant Attorney General
Synopsis
Service of claim upon Attorney General by regular mail is insufficient to obtain jurisdiction over defendant.
Case information
UID: | 2015-041-003 |
Claimant(s): | KAHENE PETERKIN |
Claimant short name: | PETERKIN |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 117324 |
Motion number(s): | M-85769 |
Cross-motion number(s): | |
Judge: | FRANK P. MILANO |
Claimant's attorney: | KAHENE PETERKIN Pro Se |
Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Jessica Hall, Esq. Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | January 7, 2015 |
City: | Albany |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
Trial of the claim was scheduled for September 26, 2014 and was adjourned without date based upon defendant's service of a motion to dismiss the claim for lack of jurisdiction because the claim was allegedly served by regular mail, rather than by certified mail, return receipt requested. Claimant has submitted an affirmation in opposition to defendant's motion to dismiss the claim.
The defendant's Exhibit A, containing the claim and the envelope in which the claim was served, provides uncontroverted proof that the claim was served by regular mail on August 31, 2009.
Court of Claims Act § 11 (a) (I), provides, at relevant part, that:
"The claim shall be filed with the clerk of the court; and, except in the case of a claim for the appropriation by the state of lands, a copy 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]).
Claimant admits in his affirmation opposing the defendant's motion to dismiss that he failed to serve the claim by certified mail, return receipt requested.
The defendant's motion to dismiss is granted. The claim is dismissed.
January 7, 2015
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion to Dismiss, filed September 30, 2014;
2. Affirmation of Jessica Hall, dated September 19, 2014, and attached exhibits;
3. Affirmation of Kahene Peterkin, dated October 13, 2014.