Opinion
# 2019-040-011 Claim No. 124007 Motion No. M-92949
01-25-2019
MARTIN SANTIAGO v. THE STATE OF NEW YORK
Martin Santiago, Pro Se LETITIA JAMES Attorney General of the State of New York By: Paul F. Cagino, Esq., AAG
Synopsis
Pro se Claimant's Claim dismissed based upon lack of jurisdiction as Claimant failed to serve the Claim upon Defendant as required by CCA § 11(a)(i).
Case information
| UID: | 2019-040-011 |
| Claimant(s): | MARTIN SANTIAGO |
| Claimant short name: | SANTIAGO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124007 |
| Motion number(s): | M-92949 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Martin Santiago, Pro Se |
|---|---|
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Paul F. Cagino, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | January 25, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's Motion to dismiss the Claim based upon lack of subject matter jurisdiction pursuant to CPLR 3211(a)(2) for failure to comply with the service requirements of Court of Claims Act § 11(a), is granted.
This pro se Claim, which was filed with the office of the Clerk of the Court on March 6, 2014, asserts that, while incarcerated at Franklin Correctional Facility, Claimant was denied timely dental treatment (Claim, p. 10) and that Claimant's medical condition was not properly and adequately treated (id., p. 12).
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 Paul F. Cagino, Esq., Assistant Attorney General [hereinafter, "Cagino 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(3).
In his affirmation submitted in support of the Motion, Defense counsel asserts that, on March 6, 2014, Claimant served a Claim upon the Attorney General by first-class mail (Cagino Affirmation, ¶¶ 4[a], 8, and Ex. A attached thereto). In reviewing Exhibit A, which includes a photocopy of the front of the envelope in which the Claim was purportedly mailed, the Court notes that there are 13 "Forever" stamps on the envelope and that there is no certified mail or return receipt sticker affixed to the envelope. Defendant asserts that, on April 4, 2014, it served a Verified Answer upon Claimant and also filed the same with the Office of the Clerk of the Court on that date (id., ¶¶ 4[b], 14, and Ex. B attached thereto), and raised as the fourth defense that the Court lacks personal jurisdiction over the Defendant and subject matter jurisdiction over the Claim as the Claim was served by ordinary mail and not served personally or by certified mail, return receipt requested, as required by Court of Claims Act § 11(a) (id., ¶ 14, and Ex. B attached thereto). Thereafter, on May 20, 2014, Defendant received, by certified mail, return receipt requested, an Amended Claim (id., ¶¶ 4[c], 11, and Ex. C attached thereto). Claimant filed the Amended Claim with the Office of the Clerk of the Court on the same date. Defendant then served and filed an Answer to the Amended Claim on June 20, 2014 (id., ¶ 4[d], and Ex. D attached thereto). The Answer to the Amended Claim raised the same Defenses as the first Answer, and also asserted as its thirteenth defense that the "Amended Claim was apparently served to cure a jurisdictional defect of having failed to serve the Claim by certified mail, return receipt requested. However, attempting to cure a jurisdictional defect by way of amendment is procedurally incorrect." Claimant did not oppose the State's Motion.
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, in its Answer, dated April 4, 2014, and in its Answer to Amended Claim, dated June 20, 2014, as its Fourth Defense, as stated above, that the Claim was served by ordinary mail, and not served personally or by certified mail, return receipt requested, as required by Court of Claims Act § 11(a)(i). Therefore, the Court concludes that Defendant established that the Claim was improperly served upon it.
A review of Claimant's Amended Claim establishes that it is the same document as his original Claim, the only change being the non-substantive addition of paragraph numbers on pages 9-14. Claimant served the Amended Claim upon Defendant by certified mail, return receipt requested, however, rather than by ordinary mail, as he did with the original Claim. As noted by the Appellate Division, Third Department, in Hogan v State of New York (59 AD3d 754, 755 [3d Dept 2009]), "a jurisdictionally defective claim cannot be cured through an amendment" (see also Dinerman v NYS Lottery, 69 AD3d 1145, 1146 [3d Dept 2010]; Manshul Constr. Co. v State Ins. Fund, 118 AD2d 983, 985 [3d Dept 1986]). In addition, Claimant did not serve his Amended Claim within 40 days after service of the Answer as required by Uniform Rules for the Court of Claims Part 206.7(b) (22 NYCRR 206.7[b]), nor did he seek or obtain leave of this Court. Thus, the Amended Claim is a nullity (Brown v State of New York, UID No. 2018-041-051 [Ct Cl, Milano, J., July 20, 2018]).
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).
January 25, 2019
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 Papers filed: Claim, Answer, Amended Claim, Answer to Amended Claim