Opinion
# 2014-009-015 Claim No. 117337 Motion No. M-84594
06-02-2014
WALTER PRICE v. THE STATE OF NEW YORK
WALTER PRICE, PRO SE NO APPEARANCE. HON. ERIC T. SCHNEIDERMAN Attorney General BY: G. Lawrence Dillon, Esq., Assistant Attorney General, Of Counsel.
Synopsis
Defendant's motion for an order dismissing the claim based upon improper service (regular, first class mail and not certified mail, return receipt requested) was granted.
Case information
| UID: | 2014-009-015 |
| Claimant(s): | WALTER PRICE |
| Claimant short name: | PRICE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 117337 |
| Motion number(s): | M-84594 |
| Cross-motion number(s): | |
| Judge: | NICHOLAS V. MIDEY JR. |
| Claimant's attorney: | WALTER PRICE, PRO SE NO APPEARANCE. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General BY: G. Lawrence Dillon, Esq., Assistant Attorney General, Of Counsel. |
| Third-party defendant's attorney: | |
| Signature date: | June 2, 2014 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant has brought this motion seeking an order dismissing the claim based upon improper service.
The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1, 2
Claimant has not submitted any papers in opposition, nor has he contacted the Court in any manner whatsoever with regard to this motion.
Pursuant to Court of Claims Act § 11 (a), a claim must be served upon the Attorney General either personally or by certified mail, return receipt requested (Hodge v State of New York, 213 AD2d 766 [3d Dept 1995]). Such provisions are jurisdictional prerequisites to the institution and maintenance of a claim, and as such must be strictly construed (Greenspan Bros. v State of New York, 122 AD2d 249 [2d Dept 1986]). Service of a claim by ordinary, first class mail is not one of the methods of service authorized by Court of Claims Act § 11 (a) (Turley v State of New York, 279 AD2d 819 [3d Dept 2001]), and service of a claim which is not made in accordance with the provisions of Section 11 is insufficient to confer jurisdiction over the State (Hodge, 213 AD2d 766; Philippe v State of New York, 248 AD2d 827 [3d Dept 1998]).
In his supporting affirmation (Item 2), defendant's attorney contends that claimant served his claim by regular, first class mail, and that such service is jurisdictionally defective. Defendant has attached a copy of the envelope in which the claim was mailed (Exhibit E to Items 1, 2), on which postage in the amount of $1.05 is indicated. This amount of postage is less than the amount required for certified mail, return receipt requested service. Additionally, there are no other markings on the envelope to indicate that the claim was served by certified mail, return receipt requested, as required by statute.
Based on these submissions, the Court finds that defendant has established that claimant served his claim upon the Attorney General by regular, first class mail, which is not a method of service authorized by Court of Claims Act § 11. Accordingly, this Court lacks jurisdiction and the claim must be dismissed.
Defendant also contends that claimant served a Notice of Intention to File a Claim (Exhibit A) via regular mail, and not by certified mail, return receipt requested. Based upon its determination herein, it is not necessary for the Court to address this contention.
Based on the foregoing, therefore, it is
ORDERED, that Motion No. M-84594 is hereby GRANTED; and it is further
ORDERED, that Claim No. 117337 is hereby DISMISSED.
June 2, 2014
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims