Opinion
# 2015-018-604 Claim No. 122475 Motion No. M-86048
01-20-2015
HASSAN A. SABUR v. STATE OF NEW YORK
HASSAN A. SABUR Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esquire Assistant Attorney General
Synopsis
Defendant has established that Claimant served the claim upon the Attorney General by regular mail, which is not a method of service authorized by Court of Claims Act section 11; the Court lacks jurisdiction over the claim. The claim is DISMISSED.
Case information
UID: | 2015-018-604 |
Claimant(s): | HASSAN A. SABUR |
Claimant short name: | SABUR |
Footnote (claimant name) : | |
Defendant(s): | STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 122475 |
Motion number(s): | M-86048 |
Cross-motion number(s): | |
Judge: | DIANE L. FITZPATRICK |
Claimant's attorney: | HASSAN A. SABUR Pro Se |
Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esquire Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | January 20, 2015 |
City: | Syracuse |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
Defendant brings a motion to dismiss the claim for lack of personal and subject matter jurisdiction and failure to state a cause of action. Claimant opposes the motion.
Claimant served a notice of intention to file a claim by certified mail, return receipt requested, on September 28, 2012. Thereafter, on March 13, 2013, the Attorney General was served with a copy of the claim by regular mail. Defendant interposed a verified answer to the claim and raised the improper service of the claim as its "First Affirmative Defense" in accordance with Court of Claims Act section 11 (c).
In support of its motion, Defendant has provided the affidavit of Janet Barringer, Senior Clerk in the Albany Office of the Attorney General. Ms. Barringer is familiar with the record keeping system of the Claims Bureau of the Attorney General's office for notice of intention and claims. In searching its electronic database, she found that the claim was received by the Albany Office of the Attorney General on March 13, 2013, by regular mail. Claimant also acknowledges that he served the Attorney General with the claim by regular mail.
Defendant's Exhibit D.
Claimant's Response to Notice to Dismiss Claim, "Affirmation in Support of Response of Motion to Dismiss" paragraphs 4 and 5.
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Court of Claims Act section 11 (a) states in relevant part that "[t]he claim shall be filed with the clerk of the court; and . . . a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general . . ."
It is well-established that the requirements for service on the Attorney General are jurisdictional and must be strictly construed (Kolnacki v State of New York, 8 NY3d 277, 281 [2007]; Byrne v State of New York, 104 AD2d 782, 783 [2d Dept 1984], appeal denied 64 NY2d 607 [1985]). Service by regular mail is not service sufficient to commence an action in this Court, and the Court cannot ignore the service defect (Zoeckler v State of New York, 109 AD3d 1133 [4th Dept 2013] [the claim herein was served by regular mail, [and] the court [is] deprived of subject matter jurisdiction]; see Bogel v State of New York, 175 AD2d 493, 494 [3d Dept 1991] ["[s]ervice of the claims upon the Attorney-General by ordinary mail was insufficient to acquire jurisdiction over the State" and the claim was therefore properly dismissed]; Diaz v State of New York, 174 Misc 2d 63, 64 [Ct Cl 1997] ["service by regular mail does not comply with the requirements of the statute and such service is therefore not adequate to acquire jurisdiction over the State." Furthermore, "the court does not have discretion to disregard the defect."] id.).
Here, Defendant has established that Claimant served the claim upon the Attorney General by regular mail, which is not a method of service authorized by Court of Claims Act section 11. Thus, the Court lacks jurisdiction over the claim.
Defendant's motion must be GRANTED and claim DISMISSED.
January 20, 2015
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following documents in deciding this motion:
1) Notice of Motion.
2) Affirmation of G. Lawrence Dillon, Esquire, Assistant Attorney General, in support, with exhibits attached thereto.
3) "Response to Notice to Dismiss Claim" of Hassan A. Sabur together with unsigned affirmation in opposition dated December 15, 2014.