Opinion
# 2015-041-002 Claim No. 117380 Motion No. M-85768
01-07-2015
TIMOTHY THOMAS v. THE STATE OF NEW YORK
TIMOTHY THOMAS Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Jessica Hall, Esq. Assistant Attorney General
Synopsis
Service of claim upon Attorney General by regular mail is insufficient to obtain jurisdiction over defendant.
Case information
UID: | 2015-041-002 |
Claimant(s): | TIMOTHY THOMAS |
Claimant short name: | THOMAS |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 117380 |
Motion number(s): | M-85768 |
Cross-motion number(s): | |
Judge: | FRANK P. MILANO |
Claimant's attorney: | TIMOTHY THOMAS Pro Se |
Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Jessica Hall, Esq. Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | January 7, 2015 |
City: | Albany |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
Trial of the claim was scheduled for September 26, 2014 and was adjourned without date based upon defendant's service of a motion to dismiss the claim for lack of jurisdiction because the claim was allegedly served by regular mail, rather than by certified mail, return receipt requested. Claimant has submitted an affidavit in opposition to defendant's motion to dismiss the claim.
The defendant's Exhibit A, containing the claim and the envelope in which the claim was served, provides proof that the claim was served by regular mail on September 10, 2009.
Court of Claims Act § 11 (a) (i), provides, at relevant part, that:
"The claim shall be filed with the clerk of the court; and, except in the case of a claim for the appropriation by the state of lands, a copy 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."
Claimant is required to satisfy the "literal notice requirements of Court of Claims Act § 11" (Femminella v State of New York, 71 AD3d 1319 [3d Dept 2010]). Any manner of service other than personal service or certified mail, return receipt requested, is insufficient to strictly fulfill the statutory criteria (Femminella, 71 AD3d at 1319).
Service of a claim by regular mail upon the Attorney General is insufficient to obtain personal jurisdiction over the defendant (Fulton v State of New York, 35 AD3d 977, 978 [3d Dept 2006], lv denied 8 NY3d 809 [2007]; see Govan v State of New York, 301 AD2d 757, 758 [3d Dept 2003], lv denied 99 NY2d 510 [2003]; Thompson v State of New York, 286 AD2d 831 [3d Dept 2001]; Turley v State of New York, 279 AD2d 819 [3d Dept 2001], lv denied 96 NY2d 708 [2001], rearg denied 96 NY2d 855 [2001]).
Claimant opposes the motion by asserting that he served both his notice of intention to file a claim, and his claim, "at the same time" on June 12, 2009, by certified mail.
Claimant's assertion is not supported by a contemporaneous affidavit of such service and is belied by the filing date stamp on the original claim filed with the Clerk of the Court of Claims, which shows that the claim was filed on September 10, 2009, the same date that the defendant asserts that it was served with a copy of the claim by regular mail.
Even assuming proper service of the claim, it is apparent that neither the notice of intention to file a claim, nor the claim itself, was served within ninety days of its stated accrual in 2004 as required by Court of Claims Act 10 (3).
The defendant's motion to dismiss is granted. The claim is dismissed.
January 7, 2015
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion to Dismiss, filed September 30, 2014;
2. Affirmation of Jessica Hall, dated September 19, 2014, and attached exhibits;
3. Affidavit of Timothy Thomas, sworn to October 20, 2014, and attached exhibits;
4. Claim, filed September 10, 2009.