Opinion
# 2016-009-033 Claim No. 121176 Motion No. M-88846
09-27-2016
THERON ST. LAURENT v. THE STATE OF NEW YORK
NO APPEARANCE. HON. ERIC T. SCHNEIDERMAN Attorney General BY: Thomas M. Trace, Esq., Senior Attorney Of Counsel.
Synopsis
Defendant's motion to dismiss based upon improper service (regular mail) was granted.
Case information
| UID: | 2016-009-033 |
| Claimant(s): | THERON ST. LAURENT |
| Claimant short name: | ST. LAURENT |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121176 |
| Motion number(s): | M-88846 |
| Cross-motion number(s): | |
| Judge: | NICHOLAS V. MIDEY JR. |
| Claimant's attorney: | NO APPEARANCE. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General BY: Thomas M. Trace, Esq., Senior Attorney Of Counsel. |
| Third-party defendant's attorney: | |
| Signature date: | September 27, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant has brought this motion seeking an order dismissing the claim based upon improper service.
The following papers were considered by the Court in connection with this motion:
Notice of Motion; Affirmation, with Exhibits 1, 2
Claimant has not submitted any papers in opposition, nor has he contacted the Court in any
manner whatsoever with regard to this motion.
Pursuant to Court of Claims Act § 11(a), a claim must be served upon the Attorney General either personally or by certified mail, return receipt requested (Hodge v State of New York, 213 AD2d 766 [3d Dept 1995]). Such provisions are jurisdictional prerequisites to the institution and maintenance of a claim, and as such must be strictly construed (Greenspan Bros. v State of New York, 122 AD2d 249 [2d Dept 1986]). Service of a claim by ordinary, first class mail is not one of the methods of service authorized by Court of Claims Act § 11(a) (Turley v State of New York, 279 AD2d 819 [3d Dept 2001]), and service of a claim which is not made in accordance with the provisions of Section 11 is insufficient to confer jurisdiction over the State (Hodge, 213 AD2d 766; Philippe v State of New York, 248 AD2d 827 [3d Dept 1998]).
In his supporting affirmation (see Item 2), defendant's attorney acknowdges that claimant served a notice of intention (Exhibit A) by certified mail, return receipt requested, as indicated by the mailing envelope, a copy of which is provided with the motion papers (Exhibit B). Defendant contends, however, that the claim (Exhibit C) was then served by regular, first class mail, and that such service is jurisdictionally defective. Defendant has attached a copy of the envelope in which this claim was mailed (Exhibit D), which indicates that postage was provided by two "forever" stamps. This amount of postage is obviously less than the amount required for certified mail, return receipt requested service. Additionally, there are no other markings on the envelope to indicate that the claim was served by certified mail, return receipt requested, as required by statute.
Furthermore, the Court notes that defendant raised the defense of lack of jurisdiction with particularity in the Third Affirmative Defense set forth in its Answer (Exhibit E), as required by Court of Claims Act § 11 (c) (ii).
Based on these submissions, the Court finds that defendant has established that claimant served his claim upon the Attorney General by regular, first class mail, which is not a method of service authorized by Court of Claims Act § 11. Accordingly, this Court lacks jurisdiction and the claim must be dismissed.
Based on the foregoing, therefore, it is
ORDERED, that motion No. M-88846 is hereby GRANTED; and it is further
ORDERED, that claim No. 121176 is hereby DISMISSED.
September 27, 2016
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims