Opinion
# 2020-040-042 Claim No. 134463 Motion No. M-95743
12-02-2020
TYQUAN SMITH v. THE STATE OF NEW YORK
Tyquan Smith, 16-R-2711, Pro Se LETITIA JAMES Attorney General of the State of New York By: Belinda A. Wagner, Esq., AAG
Synopsis
Pro se Claimant's Claim dismissed as Claim was served upon Defendant by regular mail, which is not in accord with CCA § 11(a)(i).
Case information
| UID: | 2020-040-042 |
| Claimant(s): | TYQUAN SMITH |
| Claimant short name: | SMITH |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | Caption amended to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 134463 |
| Motion number(s): | M-95743 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Tyquan Smith, 16-R-2711, Pro Se |
|---|---|
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Belinda A. Wagner, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | December 2, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's pre-Answer Motion to dismiss the Claim based upon lack of subject matter and personal jurisdiction pursuant to CPLR 3211(a)(2) and (8) for failure to comply with the service requirements of Court of Claims Act § 11(a) is granted. The remainder of the Motion is denied as moot.
This pro se Claim, which was filed in the office of the Clerk of the Court on February 13, 2020, asserts that, on July 13, 2019, at approximately 8:45 p.m., Claimant was an inmate at Bare Hill Correctional Facility and was in the Main Yard watching television, when he was slashed in the face, from behind, by an unknown assailant. Claimant asserts that the incident occurred due to the negligence of staff members.
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), by serving it by regular mail and not by certified mail, return receipt requested (Affirmation of Belinda A. Wagner, Esq., Assistant Attorney General [hereinafter, "Wagner Affirmation"], ¶¶ 4, 5). As pertinent to the instant matter, Court of Claims Act § 11(a)(i) provides that the Claim shall 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 her affirmation submitted in support of the Motion, Defense counsel asserts that, on February 12, 2020, Claimant served the Claim upon the Attorney General by regular mail (Wagner Affirmation, ¶ 4, and Ex. A attached thereto). In reviewing Exhibit A, which includes a photocopy of the envelope in which the Claim purportedly was mailed, the Court notes that the postage amounted to $ 1.40 and that there is no certified mail or return receipt sticker affixed to the front of the envelope. Defendant did not provide a copy of the back of the envelope. Claimant did not submit any papers in opposition to Defendant's Motion. However, the Court notes that, in the Affidavit of Service attached to the filed Claim, Claimant avers that he served the Claim by "First Class Mail."
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]). The defect asserted was timely and properly raised with particularity in this pre-Answer Motion in accordance with Court of Claims Act § 11(c).
Based upon the foregoing, Defendant's pre-Answer Motion is granted and the Claim is dismissed for failure to properly serve it upon the Attorney General as required by Court of Claims Act § 11(a)(i). The remainder of the Motion is denied as moot.
December 2, 2020
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 in Support, & Exhibit Attached 1 Filed Papers: Claim