Opinion
# 2014-041-001 Claim No. 117362 Motion Nos. M-85492 CM-85893
01-07-2015
OSCAR SABLE v. THE STATE OF NEW YORK
OSCAR SABLE Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Joan Matalavage, Esq. Assistant Attorney General
Synopsis
Claim is dismissed where service of claim upon Attorney General by regular mail is insufficient to obtain jurisdiction over defendant; cross-motion to file and serve late claim is denied where claimant fails to submit proposed claim with application and where underlying cause of action is barred by CPLR Article 2.
Case information
UID: | 2014-041-001 |
Claimant(s): | OSCAR SABLE |
Claimant short name: | SABLE |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 117362 |
Motion number(s): | M-85492, CM-85893 |
Cross-motion number(s): | |
Judge: | FRANK P. MILANO |
Claimant's attorney: | OSCAR SABLE Pro Se |
Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Joan Matalavage, 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 and cross-moved to file and serve a late claim. Defendant opposes the cross-motion.
The defendant's Exhibit A, containing the claim and a notice of intention to file a claim, and the envelope in which the claim was served, provides uncontroverted proof that the claim was served by regular mail on September 3, 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 affidavit 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 the claim is granted.
Claimant cross-moves to file and serve a late claim. Court of Claims Act § 10 (6) provides at relevant part as follows: "The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application."
Claimant's application does not include a proposed claim and, by the express terms of the statute, must be denied. Davis v State of New York (28 AD2d 609, 610 [3d Dept 1967]), explains:
"[T]he application as filed was not accompanied by a proposed claim as required by subdivision 5 of section 10 of the Court of Claims Act, 'containing all of the information set forth in section eleven of this act' and the granting of the application where the motion papers did not comply with the statute was error."
Additionally, pursuant to Court of Claims Act § 10 (6), the Court, upon application and in its discretion, may permit the late filing and service of a claim "at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules."
Claimant's negligence/personal injury action accrued on June 11, 2009 and is subject to a three-year statute of limitations as provided by CPLR 214 (5). The cross-motion was made on October 30, 2014, more than five years after accrual of the claim and "a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules."
The defendant's motion to dismiss is granted. The claim is dismissed. Claimant's cross-motion to file a late claim is denied.
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 August 12, 2014;
2. Affidavit of Joan Matalavage, sworn to August 12, 2014, and attached exhibits;
3. Affidavit of Oscar Sable, sworn to August 20, 2014;
4. Claimant's Notice of Cross-Motion, filed November 3, 2014;
5. Affidavit of Oscar Sable, sworn to October 30, 2014, and attached exhibit;
6. Affidavit of Joan Matalavage, sworn to December 17, 2014, and attached exhibit.