Opinion
# 2016-015-120 Claim No. 126786 Motion No. M-87641
02-23-2016
ALONZO ROSS v. THE STATE OF NEW YORK
Alonzo Ross, Pro Se No Appearance Honorable Eric T. Schneiderman, Attorney General By: Paul F. Cagino, Esquire Assistant Attorney General
Synopsis
Claim was dismissed for improper service. Moreover, defendant's denial of claimant's request to attend his sister's funeral was a discretionary one for which it is immune from liability.
Case information
| UID: | 2016-015-120 |
| Claimant(s): | ALONZO ROSS |
| Claimant short name: | ROSS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126786 |
| Motion number(s): | M-87641 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Alonzo Ross, Pro Se No Appearance |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Paul F. Cagino, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 23, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves for dismissal pursuant to CPLR 3211 (a) (2) and (7) on the ground the claim fails to state a cause of action and that it was not served in the manner prescribed by Court of Claims Act § 11 (a) (i).
Claimant, a pro se inmate, seeks damages for the unexplained denial of his request to attend his sister's funeral.
In support of its pre-answer dismissal motion, defendant contends that the claim was served by regular mail rather than by personal service or certified mail, return receipt requested, as required by Court of Claims Act § 11 (a) (i). Defendant supports its motion with a copy of the envelope in which the claim was mailed, which displays none of the indicia of a certified mailing (see defendant's Exhibit A). Defendant also contends that the claim fails to state a cause of action because the determination of whether or not an inmate may attend the funeral of a loved one is a matter of discretion as to which the defendant is immune from liability.
Addressing first defendant's contention that the claim was improperly served by regular mail, Court of Claims Act § 11 (a) (i) requires that the claim be filed with the Clerk of the Court and that "a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general . . ." Inasmuch as the filing and service requirements of Court of Claims Act §§10 and 11are jurisdictional in nature, they must be strictly construed (Lurie v State of New York, 73 AD2d 1006, 1007 [3d Dept 1980], affd 52 NY2d 849 [1981]; see also Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). Absent waiver of the defense of improper service of the claim (Court of Claims Act § 11 [c]), service of the claim by ordinary mail is insufficient to acquire jurisdiction over the defendant (Brown v State of New York, 114 AD3d 632 [2d Dept 2014]; Fulton v State of New York, 35 AD3d 977 [3d Dept 2006], lv denied 8 NY3d 809 [2007]; Govan v State of New York, 301 AD2d 757 [3d Dept 2003], lv denied 99 NY2d 510 [2003]; Thompson v State of New York, 286 AD2d 831 [3d Dept 2001]). Defendant established that the claim was improperly served by regular mail rather than one of the methods prescribed by Court of Claims Act § 11 (a) (i). Inasmuch as defendant preserved its objection by asserting improper service of the claim as a defense in its pre-trial dismissal motion, dismissal of the claim is required.
Moreover, while it is unfortunate the claimant was not permitted to attend the funeral of his sister, the applicable statutes and regulations make clear that an inmate's attendance at the funeral of a loved one is a privilege and not a right (Correction Law §§ 113; 855 [9]; 7 NYCRR § § 1901.1 [a]; 1904.1 [a]; see also Rivera v State, 169 AD2d 885 [3d Dept 1991]; Holmes v State of New York, UID No. 2011-015-528 [Ct Cl, Collins, J., June 8, 2011]; Torres v State of New York, UID No. 2009-044-563[Ct Cl, Schaewe, J., Nov.18, 2009]). Accordingly, the State retains its immunity from liability for the discretionary denial of claimant's request to attend his sister's funeral (see McClean v City of New York, 12 NY3d 194, 203 [2009] ["Government action, if discretionary, may not be a basis for liability").
Based on the forgoing, the defendant's motion is granted and the claim is dismissed, without opposition.
February 23, 2016
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers:
1. Notice of motion dated November 2, 2015;
2. Affirmation of Paul F. Cagino dated November 2, 2015 with exhibit.