Opinion
# 2016-015-153 Claim No. 122261 Motion No. M-88470
09-01-2016
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
Claimant's motion to reargue defendant's motion dismissing the claim for improper service was denied as claimant was only able to establish that the claim filed with the Clerk was sent by certified mail, return receipt requested.
Case information
| UID: | 2016-015-153 |
| 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-88470 |
| 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: | September 1, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves to reargue defendant's prior motion which resulted in a Decision and Order dismissing the claim for improper service.
In support of its prior motion to dismiss the claim for improper service, defendant submitted a copy of the envelope in which the claim was mailed establishing that the claim was mailed by ordinary mail rather than one of the methods prescribed by Court of Claims Act § 11 (a) (i). Claimant contends in support of the instant motion that "I did properly serv[e] the Court of Claims with a proper certified mail return receipt" and substantiates this contention with a copy of the disbursement request form from the prison where the mailing occurred.
It is well settled that a motion to reargue is addressed to the sound discretion of the Court and requires the moving party to demonstrate that the Court overlooked or misapprehended matters of fact or misapplied existing law to the facts presented (see CPLR, Rule 2221 [d] [2]; Peak v Northway Travel Trailers, 260 AD2d 840 [3d Dept 1999]; Spa Realty Assoc. v Springs Assoc., 213 AD2d 781 [3d Dept 1995]). Here, claimant failed to establish that the Court overlooked or misapprehended matters of fact bearing upon the issue of improper service. In arguing that claimant served the Court of Claims by certified mail, return receipt requested, claimant misconstrues the service requirements of the Court of Claims Act. As pertinent here, Court of Claims Act § 11 (a) (i) states that "[t]he claim shall be filed with the clerk of the court; and . . . a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general." To the extent claimant argues that he served the Court of Claims by certified mail, return receipt requested, he misconstrues the service requirements of § 11 (a) (i), which require service of the claim by certified mail, return receipt requested on the Attorney General, not the Court of Claims. The requirements of § 10 and § 11 of the Court of Claims Act being jurisdictional in nature (Lurie v State of New York, 73 AD2d 1006 [3d Dept 1980], affd 52 NY2d 849 [1981]), the Court is constrained to deny the instant motion.
Accordingly, claimant's motion to reargue is denied.
September 1, 2016
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers:
Affidavit of Gill Terrence in support of motion to reargue sworn to April 9, 2016 with exhibit;
Affirmation of Paul F. Cagino dated April 27, 2016.