Opinion
# 2021-040-003 Claim No. 132383 Motion No. M-96168
02-02-2021
CHARLES TONGE v. THE STATE OF NEW YORK
Charles Tonge, Pro Se LETITIA JAMES Attorney General of the State of New York By: Glenn C. King, Esq., AAG
Synopsis
State's Motion to dismiss pro se Claim granted as Claim was served by regular mail, which is not in compliance with CCA § 11(a).
Case information
| UID: | 2021-040-003 |
| Claimant(s): | CHARLES TONGE |
| Claimant short name: | TONGE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132383 |
| Motion number(s): | M-96168 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Charles Tonge, Pro Se |
|---|---|
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Glenn C. King, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | February 2, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's Motion to dismiss the Claim based upon lack of subject matter and personal jurisdiction pursuant to CPLR 3211(a)(2) and (8) for failure to comply with the service requirements of Court of Claims Act § 11(a) is granted.
This pro se Claim, which was filed in the office of the Clerk of the Court on December 11, 2018, asserts that, on May 22, 2018, Claimant was placed in the Special Housing Unit (hereinafter, "SHU") at Bare Hill Correctional Facility (hereinafter, "Bare Hill"). While he was so confined, he was not told that his property had been transported to SHU (Claim, ¶¶ 5, 6). On or about June 7, 2018, Claimant was transferred to SHU at Fishkill Correctional Facility (hereinafter, "Fishkill") (id., ¶ 7). Claimant asserts that, on both June 11 and 12, 2018, he witnessed employees inventory his property and he informed them that some of his property was missing (id., ¶ 8).
Defendant seeks dismissal of the Claim on the basis that Claimant failed to serve the Claim upon Defendant in the manner required by Court of Claims Act § 11(a)(i), by serving it by regular mail and not by certified mail, return receipt requested (Affirmation of Glenn C. King, Esq., Assistant Attorney General [hereinafter, "King Affirmation"], ¶¶ 2,4). As pertinent to the instant matter, Court of Claims Act § 11(a)(i) provides that the Claim shall be served personally or by certified mail, return receipt requested, upon the Attorney General within the time period provided in Court of Claims Act § 10(9).
In his affirmation submitted in support of the Motion, Defense counsel asserts that, on December 4, 2018, Claimant served the Claim upon the Attorney General by ordinary mail (King Affirmation, ¶ 4, and Ex. A attached thereto). In reviewing Exhibit A, which includes a photocopy of the envelope in which the Claim purportedly was mailed, the Court notes that the postage amounted to $2.68 ($.33 and $2.35) and that there is no certified mail or return receipt sticker affixed to either the front or the back of the envelope. Claimant did not submit any papers in opposition to Defendant's Motion.
The failure to properly serve the Attorney General gives rise to a defect in jurisdiction, which, if not raised with particularity, is subject to the waiver provisions of Court of Claims Act § 11(c) (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]; Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
Section 11 of the Court of Claims Act constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State and, thus, must be strictly construed (Buckles v State of New York, 221 NY 418 [1917]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], appeal denied 64 NY2d 607 [1985]). The Court cannot waive a defect in jurisdiction that has been timely raised (Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). Defendant timely and properly raised, with particularity, in its Answer, dated January 9, 2019, as its Seventh Defense, that the Claim was served by ordinary mail, and not served personally or by certified mail, return receipt requested, as required by Court of Claims Act § 11(a). Therefore, the Court concludes that Defendant established that the Claim was improperly served upon it.
Based upon the foregoing, Defendant's Motion is granted and the Claim is hereby dismissed for failure to properly serve it upon the Attorney General as required by Court of Claims Act § 11(a)(i).
February 2, 2021
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Defendant's Motion for dismissal: Papers Numbered Notice of Motion, Affirmation in Support, & Exhibits Attached 1 Filed Papers: Claim, Answer