Opinion
# 2021-038-513 Claim No. 135311 Motion No. M-96268
03-02-2021
DAVID WYNTER, 05A1750 v. STATE OF NEW YORK
No Appearance LETITIA JAMES, Attorney General of the State of New York By: Jeane Strickland Smith, Assistant Attorney General
Synopsis
Defendant's pre-answer motion to dismiss for lack of jurisdiction on the ground that it was improperly served by regular mail granted.
Case information
| UID: | 2021-038-513 |
| Claimant(s): | DAVID WYNTER, 05A1750 |
| Claimant short name: | WYNTER |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 135311 |
| Motion number(s): | M-96268 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | No Appearance |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Jeane Strickland Smith, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 2, 2021 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim alleging that he was unlawfully confined at Green Haven Correctional Facility from May 29 to June 5, 2020. Defendant makes this pre-answer motion to dismiss the claim for lack of jurisdiction on the ground that it was improperly served by regular mail. Claimant has defaulted in responding to the motion.
Court of Claims Act § 11 (a) (i) requires that if a claim is served upon the Attorney General by mail, it must be accomplished by certified mail, return receipt requested (CMRRR). It is well established that the service requirements of the Court of Claims Act must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Martinez v State of New York, 282 AD2d 580, 580 [2d Dept 2001], lv denied 96 NY2d 720 [2001]). Service of the claim by ordinary mail is insufficient to acquire personal jurisdiction over the defendant (Govan v State of New York, 301 AD2d 757, 758 [3d Dept 2003], lv denied 99 NY2d 510 [2003]), and the failure to effect service by CMRRR is a jurisdictional defect that requires dismissal of the claim (see Turley v State of New York, 279 AD2d 819, 819 [3d Dept 2001], lv denied 96 NY2d 708 [2001], rearg denied 96 NY2d 855 [2001]; Philippe v State of New York, 248 AD2d 827, 827 [3d Dept 1998]).
In support of its motion to dismiss, defendant has demonstrated that the claim was served upon the Attorney General not by CMRRR, but by regular, first-class mail on September 8, 2020 (see Strickland Smith Affirmation, ¶ 3, Exhibit A). As noted above, claimant has not responded to the motion, and thus has not controverted defendant's showing that he failed to serve the claim on the Attorney General by CMRRR. Thus, the claim is jurisdictionally defective and must be dismissed.
Accordingly, it is
ORDERED, that defendant's motion number M-96268 is GRANTED, and claim number 135311 is hereby DISMISSED.
March 2, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: 1. Claim number 135311, filed September 8, 2020; 2. Notice of Motion, dated September 29, 2020; 3. Affirmation of Jeane L. Strickland Smith, AAG, in Support of Motion to Dismiss, dated September 29, 2020, with Exhibit A; 4. Affidavit of Service of Francine Broughton, sworn to October 1, 2020.