Opinion
# 2021-059-001 Claim No. 134695 Motion No. M-95827
01-05-2021
JERMAINE WILSON v. THE STATE OF NEW YORK
JERMAINE WILSON, Pro se HON. LETITIA JAMES, ATTORNEY GENERAL By: Dorothy M. Keogh, Assistant Attorney General
Synopsis
Case information
| UID: | 2021-059-001 |
| Claimant(s): | JERMAINE WILSON |
| Claimant short name: | WILSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 134695 |
| Motion number(s): | M-95827 |
| Cross-motion number(s): | |
| Judge: | MAUREEN T. LICCIONE |
| Claimant's attorney: | JERMAINE WILSON, Pro se |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL By: Dorothy M. Keogh, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 05, 2021 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, served a notice of intention to file a claim upon the attorney general on February 26, 2020, via certified mail, return receipt requested. He subsequently filed a claim with Office of the Clerk of this Court on May 26, 2020 alleging twenty days of wrongful confinement based on a misbehavior report issued on or about July 29, 2019. On April 15, 2020, the office of the attorney general received the claim by regular mail. The State of New York (Defendant) now makes this pre-answer motion to dismiss the claim pursuant to CPLR 3211 (a) (2) and Court of Claims Act § 10 (3) (b) and § 11 (a) (i) on the grounds that the claim was untimely and also improperly served.
The filing and service requirements of Court of Claims Act § 11 must be strictly construed as they are jurisdictional in nature (see Kolnacki v State of New York, 8 NY3d 277 [2007]). Court of Claims Act § 10 (3) (b) and § 11 (a) (i) provide that an intentional tort claim, such as one for wrongful confinement, must be filed and a copy served personally or by certified mail, return receipt requested, upon the attorney general within ninety days of the claim's accrual, unless within that same ninety-day period the claimant serves a notice of intention to file a claim upon the attorney general, in which case the claim must be filed and served within one year after accrual of the claim. The failure to timely and properly serve a notice of intention to file a claim or a claim within the requisite ninety-day period deprives the Court of jurisdiction, requiring dismissal of the claim (see Bennett v State, 106 AD3d 1040 [2d Dept 2013]). Further, absent waiver of the defense of improper service by a failure to assert it in the answer (see Court of Claims Act § 11 [c] [ii]), service of a claim by ordinary mail is insufficient for jurisdiction to attach (see Brown v State, 114 AD3d 632 [2d Dept 2014]).
Here, Claimant's cause of action accrued when he was released from the allegedly wrongful confinement (see Trammell v State, 172 AD3d 1847 [3d Dept 2019]), which as he concedes in his opposition to this motion, was on August 23, 2019. Neither his notice of intention to file a claim nor the claim was served within ninety days. Accordingly, the claim herein is untimely and this Court is without jurisdiction over it.
Further, Defendant has established, and Claimant does not deny, that the claim was served upon the attorney general by regular mail. "'Alternative mailings which do not equate to certified mail, return receipt requested, are inadequate and do not comply with Court of Claims Act § 11 (a)' which, as noted above, is not a mere technical requirement, but a jurisdictional prerequisite that must be strictly construed" (Poulos v State of New York, UID No. 2020-038-550 [Ct Cl, DeBow, J., Sep. 8, 2020], quoting Hodge v State of New York, 213 AD2d 766, 767 [3d Dept 1995]). Therefore, Claimant's failure to comply with the service requirements of the Court of Claims Act deprives the Court of jurisdiction and the claim must be dismissed (see id.; Forbes v State of New York, UID No. 2019-038-593 [Ct Cl, DeBow, J., Oct. 9, 2019]).
Accordingly, for the foregoing reasons, it is ORDERED that Defendant's pre-answer motion to dismiss (M-95827) is granted and the claim is dismissed.
MAUREEN T. LICCIONE
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion of Dorothy M. Keogh, AAG, dated August 21, 2020 with attached exhibits.
2. Reply to Defendant's Motion to Dismiss of Jermaine Wilson, pro se, sworn to August 31, 2020.
January 05, 2021
Hauppauge, New York
MAUREEN T. LICCIONE
Judge of the Court of Claims