Opinion
# 2015-041-042 Claim No. 123874 Motion No. M-85885
06-09-2015
WARWICK v. THE STATE OF NEW YORK
GEORGE WARWICK Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Paul F. Cagino, Esq. Assistant Attorney General
Synopsis
Service of claim upon Attorney General by USPS priority mail is insufficient to confer subject matter jurisdiction over the claim.
Case information
| UID: | 2015-041-042 |
| Claimant(s): | GEORGE WARWICK |
| Claimant short name: | WARWICK |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended to state the only proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123874 |
| Motion number(s): | M-85885 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | GEORGE WARWICK Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Paul F. Cagino, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 9, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss the claim based, among several other grounds, upon claimant's alleged failure to properly serve the claim upon the Attorney General. In particular, defendant has submitted proof that the claim was served upon the Attorney General by the United States Postal Service (USPS) priority mail rather than personally or by certified mail, return receipt requested.
Claimant does not deny that the claim was not served either personally or by certified mail, return receipt requested.
Court of Claims Act § 11 (a) (i), provides, at relevant part:
"[A] copy [of the claim] 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 1320).
Miranda v State of New York (113 AD3d 943, 944 [3d Dept 2014]), specifically explains that service of a claim by USPS priority mail upon the Attorney General is insufficient to provide subject matter jurisdiction over the claim:
"Pursuant to Court of Claims Act § 11 (a) (i), a notice of claim must be served upon the Attorney General either personally or by certified mail, return receipt requested (see Spaight v State of New York, 91 AD3d 995, 995 [2012]; Femminella v State of New York, 71 AD3d 1319, 1320 [2010]). Here, claimant's substituted manner of service--priority mail--did not strictly comply with the statutory requirements (see Femminella v State of New York, 71 AD3d at 1320; Filozof v State of New York, 45 AD3d 1405, 1406 [2007]; Hodge v State of New York, 213 AD2d 766, 767 [1995]; Newman v State of New York, 5 Misc 3d 640, 642 [2004]). That failure 'divests the court of subject matter jurisdiction,' and, therefore, dismissal of the claim was required (Caci v State of New York, 107 AD3d 1121, 1122 [2013] [internal quotation marks and citation omitted]; accord Kolnacki v State of New York, 8 NY3d 277, 281 [2007]). As a result, we need not reach the alternative grounds for dismissal advanced by defendant."
The Court lacks subject matter jurisdiction over the claim, which was indisputably served by USPS priority mail, and defendant's several alternative grounds for dismissal need not be considered.
The defendant's motion is granted. The claim is dismissed.
June 9, 2015
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion to Dismiss, filed November 4, 2014;
2. Affirmation of Paul F. Cagino, dated November 4, 2014, and annexed exhibits;
3. "Answer" of George Warwick, filed November 14, 2014.