Opinion
# 2016-015-122 Claim No. 122261 Motion No. M-87661
03-09-2016
GILL TERRENCE v. THE STATE OF NEW YORK
Gill Terrence, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Paul F. Cagino, Esquire Assistant Attorney General
Synopsis
Claim was dismissed for improper service by ordinary mail rather than one of the methods prescribed by Court of Claims Act § 11 (a) (i).
Case information
| UID: | 2016-015-122 |
| Claimant(s): | GILL TERRENCE |
| Claimant short name: | TERRENCE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122261 |
| Motion number(s): | M-87661 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Gill Terrence, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Paul F. Cagino, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 9, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss the claim pursuant to CPLR 3211 (a) (2) and (7) on the ground it was not served in the manner prescribed by Court of Claims Act § 11 (a).
Claimant, proceeding pro se, seeks damages for injuries allegedly sustained on July 13, 2012 when he fell from an upper bunk during the course of his imprisonment at Mt. McGregor Correctional Facility.
In support of its motion, defendant contends that the claim was served by ordinary mail rather than by personal service or certified mail, return receipt requested, as required by Court of Claims Act § 11 (a) (i). Defendant supports its motion with a copy of the envelope in which the claim was mailed, which contains no indicia of a certified mailing (see defendant's Exhibit A).
Court of Claims Act § 11 (a) (i) requires that the claim be filed with the Clerk of the Court and that "a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general . . ." Inasmuch as the filing and service requirements of Court of Claims Act §§10 and 11are jurisdictional in nature, they must be strictly construed (Lurie v State of New York, 73 AD2d 1006, 1007 [3d Dept 1980], affd 52 NY2d 849 [1981]; see also Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). Absent waiver of the defense of improper service of the claim (Court of Claims Act § 11 [c]), service of the claim by ordinary mail is insufficient to acquire jurisdiction over the defendant (Brown v State of New York, 114 AD3d 632 [2d Dept 2014]; 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]; Thompson v State of New York, 286 AD2d 831 [3d Dept 2001]). Defendant established that the claim was improperly served by ordinary mail rather than one of the methods prescribed by Court of Claims Act § 11 (a) (i). Inasmuch as defendant preserved its objection by asserting a lack of proper service in its answer, dismissal of the claim for improper service is required.
To the extent claimant contends that his "intention claim" was served by certified mail, return receipt requested, on July 23, 2012 (statement of Terrence Gill dated Nov. 18, 2015, ¶ 6), he is clearly referring to the notice of intention, which the claim references as having been served on that same date, and not the claim itself. Moreover, claimant's affidavit of service indicates the claim was placed "in a mail receptacle designated as U.S. Mail", which is consistent with the postmark on the envelope included as part of defendant's Exhibit A.
Based on the forgoing, the defendant's motion is granted and the claim is dismissed.
March 9, 2016
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers:
1. Notice of motion dated November 10, 2015;
2. Affirmation of Paul F. Cagino dated November 10, 2015 with exhibits;
3. Affirmation of Gill Terrence verified November 18, 2015;
4. Supplemental affirmation of Paul F. Cagino dated December 15, 2015 with exhibits;
5. Sur reply of Gill Terrence verified December 24, 2015.