Opinion
# 2015-038-526 Claim No. 121664 Motion No. M-86194
05-27-2015
WADDELL SMITH v. THE STATE OF NEW YORK
WADDELL SMITH, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Anthony Rotondi, Assistant Attorney General
Synopsis
Claim dismissed on jurisdictional defect of service by first class mail. Waiver of defense of improper service pursuant to CPLR 3211(e) does not apply to claims in the Court of Claims. Authority to overlook non-prejudicial mistakes per CPLR 2001 does not apply to jurisdictional defects.
Case information
| UID: | 2015-038-526 |
| Claimant(s): | WADDELL SMITH |
| Claimant short name: | SMITH |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121664 |
| Motion number(s): | M-86194 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | WADDELL SMITH, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Anthony Rotondi, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 27, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual who is incarcerated in a State correctional facility, filed this claim seeking compensation for injuries claimed as a result of the alleged negligence of defendant's employees in providing, or failing to provide, medical care. Claimant's motion for summary judgment was denied in 2013 (see Smith v State of New York, UID No. 2013-040-075 [Ct Cl, McCarthy, J., filed Dec. 11, 2013]), and his subsequent motion for reargument was also denied (see Smith v State of New York, UID No. 2014-040-011 [Ct Cl, McCarthy J., March 10, 2014]). Defendant moves for dismissal of the claim on jurisdictional grounds due to claimant's improper service of the claim. Claimant opposes the motion.
Claimant's 2013 motion for summary judgment or his motion for reargument were not met with a cross motion by defendant based upon this jurisdictional defense, which was asserted in defendant's answer to the claim in 2012 (see Verified Answer, Fourth Defense).
Court of Claims Act § 11 (a) (i) requires that if a claim is served upon the Attorney General by mail, it must be accomplished by certified mail, return receipt requested (CMRRR). The service requirements of the Court of Claims Act must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]), and the failure to effect service by CMRRR is a jurisdictional defect that requires dismissal of the claim (see Turley v State of New York, 279 AD2d 819 [3d Dept 2001], lv denied 96 NY2d 708 [2001]; Philippe v State of New York, 248 AD2d 827 [3d Dept 1998]; Estrella v State of New York, UID No. 2008-018-634 [Ct Cl, Fitzpatrick, J., Sept. 3, 2008]). Service of the claim by ordinary mail is a nullity (see Fulton v State of New York, 35 AD3d 977, 978 [3d Dept 2006], lv denied 8 NY3d 809 [2007]), and such service is insufficient to acquire personal jurisdiction over the defendant (see Govan v State of New York, 301 AD2d 757, 758 [3d Dept 2003], lv denied 99 NY2d 510 [2003]).
Defendant demonstrates that the claim was not served upon the Attorney General by CMRRR, but by ordinary first class mail (see Rotondi Affirmation, ¶ 5; Exhibit B). Claimant acknowledges this improper manner of service (see Claimant's Reply, ¶ 4), but he opposes the motion on the grounds that defendant has waived its argument that the claim was not properly served because this motion was not made within 60 days of service of the answer (see CPLR 3211 [e]), and that the technicality of improper service may be overlooked where, as here, no prejudice was suffered by defendant (see CPLR 2001). Neither of these contentions is correct.
The waiver provision of CPLR 3211 (e) expressly applies to improper service of the summons in an action or of a notice of petition in a special proceeding, but not to a claim in the Court of Claims (see Diaz v State of New York, 174 Misc 2d 63, 65 [Ct Cl 1997]; Crenshaw v State of New York, UID No. 2012-038-575 [Ct Cl, DeBow, J., Oct. 30, 2012]). Further, because the improper service of a claim against the State is a jurisdictional defect (see Turley v State of New York; Philippe v State of New York), CPLR 2001 - which allows a court to disregard non-prejudicial mistakes, omissions, defects or irregularities - is inapplicable (see Matter of Vetrone v Mackin, 216 AD2d 839, 841 [3d Dept 1995]; Narvaez v State of New York, UID No. 2000-015-018, Collins, J., Apr. 6, 2000]). Thus, claimant's opposition to defendant's motion is unavailing.
Accordingly, it is
ORDERED, that motion number M-86194 is GRANTED, and claim number 121664 is DISMISSED.
May 27, 2015
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim No. 121664, filed August 23, 2012; (2) Verified Answer, filed September 27, 2012; (3) Smith v State of New York, UID No. 2013-040-075, McCarthy, J., filed December 11, 2013; (4) Smith v State of New York, UID No. 2014-040-011, McCarthy J., March 10, 2014; (5) Notice of Motion, dated January 9, 2015; (6) Affirmation of Anthony Rotondi, AAG, in Support of Motion to Dismiss, dated January 9, 2015, with Exhibits A-C; (7) Claimant's Reply in Opposition to Notice of Motion to Dismiss, sworn to January 22, 2015.