Opinion
# 2016-045-048 Claim No. 125983 Motion No. M-88456
09-28-2016
JEAN-MARIE PIERROT v. THE STATE OF NEW YORK
Jean-Marie Pierrot, Pro Se No Appearance Hon. Eric T. Schneiderman, Attorney General By: Christina Calabrese, Assistant Attorney General
Synopsis
Defendant's motion to dismiss pro se inmate's claim due to lack of verification, no filing fee, regular mail, cause of action not in notice of intention and constitutional claims.
Case information
| UID: | 2016-045-048 |
| Claimant(s): | JEAN-MARIE PIERROT |
| Claimant short name: | PIERROT |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125983 |
| Motion number(s): | M-88456 |
| Cross-motion number(s): | |
| Judge: | Gina M. Lopez-Summa |
| Claimant's attorney: | Jean-Marie Pierrot, Pro Se No Appearance |
| Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: Christina Calabrese, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 28, 2016 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion and Defendant's Affirmation in Support with annexed Exhibits A-G.
Defendant, the State of New York, has brought this motion seeking to amend its second answer and dismissal of the claim pursuant to CPLR 3013, 3025 (b), 3211 (a) (2), (7) and (8) as well as Court of Claims Act §§ 10 and 11. Claimant, Jean-Marie Pierrot, has not opposed the motion.
On December 22, 2014, claimant served defendant with a notice of intention in this action. On December 26, 2014, claimant served a second notice of intention upon defendant in this matter. On April 16, 2015, claimant served defendant with an unverified claim which defendant rejected pursuant to CPLR 3022. On May 7, 2015, claimant served an identical claim upon defendant however this claim was verified. On May 12, 2015, issue was joined for the first unverified claim served on April 16, 2015 and on May 22, 2015 issue was joined for the verified claim which was served on May 7, 2015. Defendant raised the failure to verify the claim as its fifth affirmative defense in its verified answer to the April 16, 2015 unverified claim. Defendant did not raise the defense of verification in its verified answer to the May 7, 2015 verified claim but did raise the defense of improper service.
Defendant argues that the April 16, 2015 claim must be dismissed since it was not verified.
Court of Claims Act § 11 (b) states in pertinent part that "[t]he claim and notice of intention to file a claim shall be verified in the same manner as a complaint . . . in the supreme court." Claimant's failure to strictly comply with the statutory requirements set forth in Court of Claims Act § 11 deprives this Court of jurisdiction over the claim (Lepkowski v State of New York,1 NY3d 201 [2003]; Weaver v State of New York, 82 AD3d 878 [2d Dept 2011]). Accordingly, the Court must dismiss the April 16, 2016 claim.
Defendant also contends that the May 7, 2015 claim must be dismissed as it was sent by regular mail as opposed to certified mail return receipt requested. In support, defendant submitted the affidavit of Janet Barringer, Office Assistant 2 in the Albany Office of the Attorney General, who affirmed that the claim was received in the Albany Office of the Attorney General by regular mail (see Def Exh G).
Court of Claims Act § 11 (a) provides that 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 . . . ." The filing and service requirements contained in the Court of Claims Act § 11 are jurisdictional in nature and therefore must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721 [1989]). In this case, the requirement that defendant be served in accordance with Court of Claims Act § 11 was not met as the claim was served by ordinary mail. As "the use of ordinary mail to serve the claim upon the Attorney-General is insufficient to acquire jurisdiction over the State" (Turley v State of New York, 279 AD2d 819 [3d Dept 2001]), the Court is deprived of jurisdiction.
Therefore, for the foregoing reasons, defendant's motion is granted and the claim is dismissed.
September 28, 2016
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims