Opinion
# 2013-032-023 Claim No. 115845 Motion No. M-83335
06-18-2013
LARRY WALRAD v. THE STATE OF NEW YORK
Synopsis
Case information
UID: 2013-032-023 Claimant(s): LARRY WALRAD Claimant short name: WALRAD Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 115845 Motion number(s): M-83335 Cross-motion number(s): Judge: JUDITH A. HARD Larry Walrad, Pro Se Claimant's attorney: No Appearance Hon. Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Paul F. Cagino, Assistant Attorney General, Of Counsel Third-party defendant's attorney: Signature date: June 18, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant has moved to dismiss the Claim based upon Claimant's failure to serve the claim by certified mail, return receipt as required by Court of Claims Act § 11 (a) (Caginoaffirmation ¶¶ 10-11). Claimant has failed to oppose the motion. For the reasons set forth below, defendant's motion is granted and claim No. 115845 is dismissed
Court of Claims Act § 11 (a) provides, in relevant part, that a copy of the claim at issue "shall be served personally or by certified mail, return receipt requested, upon the attorney general." The requirements set forth in Court of Claims Act § 11 are jurisdictional in nature and, as such, must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722 [1989]; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687 [3d Dept 2000]; see also, Lichtenstein v State of New York, 93 NY2d 911 [1999] [applying same principles to requirements of Court of Claims Act § 10]). The Court is not free to temper application of a rule of law, whether done in the exercise of discretion, equity or because there is no prejudice and a harsh result will be avoided (Martin v State of New York, 185 Misc 2d 799, 804-805 [Ct Cl 2000] [citations omitted]).
As an initial matter, the Court finds that the State adequately pleaded the service defense with sufficient particularity in its Answer (Cagino affirmation exhibit B) to meet the requirement of Court of Claims Act § 11 (c) (Sinacore v State of New York, 176 Misc 2d 1, 9, [Ct Cl 1998]). The defendant has provided a photocopy of the envelope (exhibit A) in which the claim was served to establish same was not served by certified mail, return receipt requested but rather improperly by first class mail (Dreger v New York State Thruway Authority, 81 NY2d 721 [1992]; Negron v State of New York, 257 AD2d 652 [2d Dept 1999]; Philippe v State of New York, 248 AD2d 827 [3d Dept 1998]). Accordingly, claimant has failed to meet the literal requirements of Court of Claims Act § 11, and therefore, has not properly commenced his action.
The Court, having found that claimant did not serve the claim by certified mail, return receipt requested, hereby grants the defendant's motion to dismiss the claim. Accordingly, claim No. 115845 hereby is dismissed.
June 18, 2013
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion, and Supporting Affirmation of Assistant Attorney General Paul F. Cagino filed April 26, 2013 with annexed Exhibits A - C.
2. Claim, filed September 16, 2008 and Verified Answer, filed October 21, 2008.