Opinion
# 2011-049-022 Claim No. 120419 Motion No. M-80663
12-22-2011
TEAL v. THE STATE OF NEW YORK
Synopsis
Case information
UID: 2011-049-022 Claimant(s): EDWARD TEAL Claimant short name: TEAL Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 120419 Motion number(s): M-80663 Cross-motion number(s): Judge: David A. Weinstein Edward Teal, Pro Se Claimant's attorney: By: No Appearance Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Roberto Barbosa, Assistant Attorney General Third-party defendant's attorney: Signature date: December 22, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant Edward Teal, pro se and incarcerated, filed the claim at issue on October 3, 2011. In his claim, he asserts that on several occasions at Southport Correctional Facility, he was served sliced turkey that emitted a bad odor, and appeared to be spoiled. Once, on June 22, 2011, he ate the turkey and suffered from a stomach ache and other maladies. Subsequently, he refrained from eating when these cold cuts were served.
Defendant filed an answer, asserting as its first affirmative defense that the Court lacks jurisdiction over defendant because the claim was served by regular mail, and not certified mail, return receipt requested or personal service as required by Court of Claims Act § 11. Defendant now moves to dismiss this claim on the ground that claimant failed to effectuate proper service.
Court of Claims Act § 11(a)(i) provides in pertinent part that:
". . . . [A] copy [of the claim] shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court."
Compliance with these service requirements is a jurisdictional prerequisite for bringing suit in this Court, and service by regular mail therefore compels dismissal (see Fulton v State of New York, 35 AD3d 977 [3d Dept 2006], lv denied 8 NY3d 809 [2007]; Govan v State of New York, 301 AD2d 757 [3d Dept 2003], lv denied 99 NY2d 510 [2003]).
In this case, defendant raised claimant's failure to properly serve his claim in its answer with the particularity required by Court of Claims Act § 11(c). It has submitted an affirmation attesting to claimant's service via regular mail, and provided a copy of the envelope in which the claim was sent to the Office of the Attorney General.
Claimant submitted no opposition papers.
In view of the foregoing, it is
ORDERED that motion no. M-80663 be granted and that claim no. 120419 be dismissed.
December 22, 2011
Albany, New York
David A. Weinstein
Judge of the Court of Claims
Papers considered
1. Defendant's Notice of Motion and Affirmation in Support, and annexed Exhibits.