Opinion
# 2016-040-033 Claim No. 127463 Motion No. M-88180
05-25-2016
CALVIN REED v. THE STATE OF NEW YORK
Calvin Reed, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Glenn C. King, Esq., AAG
Synopsis
State's pre-Answer motion to dismiss Claim granted. Claim served by regular mail rather than certified mail, return receipt requested or personal service as required by CCA.
Case information
| UID: | 2016-040-033 |
| Claimant(s): | CALVIN REED |
| Claimant short name: | REED |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127463 |
| Motion number(s): | M-88180 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Calvin Reed, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Glenn C. King, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | May 25, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's pre-Answer Motion to dismiss the Claim based upon lack of jurisdiction for failure to comply with the service requirements of Court of Claims Act §§ 10 and 11 is granted.
This pro se Claim, which was filed with the Clerk of the Court on February 2, 2016, asserts that Claimant lost items of his personal property when he was transferred from Franklin Correctional Facility to Greene Correctional Facility on September 25, 2015.
Defendant seeks dismissal of the Claim on the basis that Claimant failed to serve the Claim upon Defendant in the manner required by Court of Claims Act § 11(a)(i) (Affirmation of Glenn C. King, Esq., Assistant Attorney General [hereinafter, "King Affirmation"], ¶ 2). As pertinent to the instant matter, Court of Claims Act § 11(a)(i) provides that the Claim be served personally or by certified mail, return receipt requested, upon the Attorney General within the time period provided in Court of Claims Act § 10(9).
In his affirmation submitted in support of the Motion, Defense counsel asserts that, on February 1, 2016, Claimant served the Claim upon the Attorney General by regular mail (King Affirmation, ¶ 4 and Ex. A attached thereto). In reviewing Exhibit A, which includes a photocopy of the envelope in which the Claim was purportedly mailed, the Court notes that the postage amounted to $2.08 and that there is no certified mail or return receipt sticker affixed to either the front or the back of the envelope. Moreover, Claimant, in his opposition papers, asserts that he "did not have any money in [his] inmate account to purchase certified mail return receipt" requested (Claimant's Opposition, p. 1).
The failure to properly serve the Attorney General gives rise to a defect in jurisdiction which, if not raised with particularity, is subject to the waiver provisions of Court of Claims Act § 11(c) (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]; Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
Section 11 of the Court of Claims Act constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State and, thus, must be strictly construed (Buckles v State of New York, 221 NY 418 [1917]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], appeal denied 64 NY2d 607 [1985]). The Court cannot waive a defect in jurisdiction that has been timely raised (Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). Defendant timely and properly raised, with particularity, its defense that the Claim was delivered by regular mail, not served personally or by certified mail, return receipt requested, as required by Court of Claims Act § 11(a) in this pre-Answer Motion. Therefore, the Court concludes that Defendant established that the Claim was improperly served upon it.
Based upon the foregoing, Defendant's Motion is granted and the Claim is hereby dismissed for failure to properly serve it upon the Attorney General as required by Court of Claims Act § 11(a)(i).
May 25, 2016
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Defendant's Motion for dismissal: Papers Numbered Notice of Motion, Affirmation and Exhibits attached 1 Claimant's Opposition & Exhibits attached 2 Papers filed: Claim