Opinion
# 2019-053-557 Claim No. 126462 Motion No. M-94364
12-13-2019
SAMUEL P. WYNN v. THE STATE OF NEW YORK
SAMUEL P. WYNN, Pro Se HON. LETITIA JAMES New York State Attorney General BY: Timothy J. Flynn, Esq. Assistant Attorney General
Synopsis
Defendant's motion to dismiss pro se inmate's claim on the basis that it was jurisdictionally defective is granted as the claim was served by regular mail.
Case information
| UID: | 2019-053-557 |
| Claimant(s): | SAMUEL P. WYNN |
| Claimant short name: | WYNN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126462 |
| Motion number(s): | M-94364 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | SAMUEL P. WYNN, Pro Se |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: Timothy J. Flynn, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 13, 2019 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Samuel P. Wynn, an inmate proceeding pro se, alleges in claim no. 126462 that he was wrongfully confined in the Special Housing Unit (SHU) at Gowanda Correctional Facility (Gowanda) for 87 days. Defendant moves to dismiss the claim, alleging that the Court lacks jurisdiction as the claim was served by regular mail. Claimant failed to appear or otherwise oppose defendant's motion.
On July 11, 2019, defendant filed motion no. M-94364 to dismiss claim no. 126462. At about the same time, defendant attempted to serve the pro se claimant at Livingston Correctional Facility (Livingston). Before a decision on the motion could be rendered, the Court became aware that Mr. Wynn had been released from custody and was residing in Buffalo, New York. By letter dated September 17, 2019, this Court advised claimant that it was adjourning the return date of this motion and was further requesting the defendant to re-serve its motion papers (a copy of this Court's letter dated September 17, 2019 is annexed to this decision as Court Exhibit 1). On September 23, 2019, defendant re-served its motion papers on Mr. Wynn at his Buffalo, New York address (see copy of the affidavit of service annexed hereto as Court Exhibit 2).
Court of Claims Act §§ 10 (3-b) and 11(a) (i), provide that a claim for personal injuries caused by the intentional tort of an officer or employee of the State of New York must be filed and a copy served upon the Attorney General personally or by certified mail, return receipt requested, within ninety (90) days after the accrual of the claim, unless the Claimant shall within the same ninety (90) day period serve upon the Attorney General a notice of intention to file a claim, in which event the claim based on an intentional act shall be filed and served within one year after the accrual of the claim. The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). The failure to serve a claim personally or by certified mail, return receipt requested, divests the Court of jurisdiction, requiring dismissal of the claim (Bogel v State of New York, 175 AD2d 493 [3d Dept 1991]). Defendant alleges that the claim was improperly served by regular mail and raised this objection with particularity as an affirmative defense in its answer (Defendant's Exhibit C) in compliance with Court of Claims Act § 11 (c ).
Attached to defendant's motion as Exhibit A is a copy of claimant's notice of intention to file a claim which was served on the Attorney General's Office on December 15, 2014, together with a copy of the envelope in which it was served. This envelope shows postage of $6.00 and markings indicating that the notice of intention had been served by certified mail, return receipt requested.
Attached to defendant's motion as Exhibit B is a copy of the claim as served on the Attorney General's Office on June 8, 2015, together with a copy of the envelope in which it was served. This envelope shows postage of $1.64, an amount insufficient for service by certified mail, return receipt requested. In addition, this envelope shows none of the markings or indicia of service by certified mail, return receipt requested, as can be seen on the envelope by which the notice of intention was served. Finally, claimant has failed to come forward with a copy of a green return receipt card, or a copy of a disbursement request form indicating that he requested the necessary postage to serve the claim by certified mail, return receipt requested, or any evidence of appropriate service.
Attached to the claim as filed is an affidavit of service indicating only that a motion to proceed as a poor person was being deposited in an official depository of the United States Postal Service on July 13, 2015. Nothing in this affidavit of service indicates that anything is being mailed by certified mail, return receipt requested. Moreover, this affidavit of service indicates a mailing on July 13, 2015, more than a month after the claim was served upon the Attorney General. As the claim was filed on July 20, 2015, this affidavit of service, at best, refers to the filing of claimant's motion to proceed as a poor person and, possibly, the filing of the claim, but has no relevance to the service of the claim on the Attorney General a month earlier.
Based on the evidence presented, the Court concludes that the claim was served upon the Attorney General's Office by regular mail, thus, depriving the Court of subject matter jurisdiction and requiring dismissal of the claim (Tuszynski v State of New York, 156 AD3d 1472 [4th Dept 2017]; Zoeckler v State of New York, 109 AD3d 1133 [4th Dept 2013]).
Accordingly, defendant's motion no. M-94364 is granted and claim no. 126462 is dismissed.
December 13, 2019
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Notice of motion and affidavit of Assistant Attorney General Timothy J. Flynn sworn to July 9, 2019, with annexed Exhibits A-C; 2. The Court's letter of September 17, 2019 (Court Exhibit 1); and 3. Affidavit of service of motion papers upon claimant at his Buffalo, New York address, sworn to October 3, 2019 (Court Exhibit 2).