Defendant's motion to dismiss granted. Claimant's unsworn submission, unaccompanied by documentary evidence, was insufficient to refute defendant's demonstration that claim was served by ordinary first class mail and not CMRRR.
|Claimant short name:||HALL|
|Footnote (claimant name) :|
|Defendant(s):||NEW YORK STATE|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||RALPH HALL, Pro se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Heather R. Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 4, 2017|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim alleging that he was deprived meals and physical therapy at Green Haven Correctional Facility (CF). Defendant moves in lieu of answer to dismiss the claim on the grounds that it fails to state a cause of action and that the claim was improperly served by first class mail. Claimant opposes 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). 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 ), and the failure to effect service by CMRRR requires dismissal of the claim (see Turley v State of New York, 279 AD2d 819 [3d Dept 2001], lv denied 96 NY2d 708 ; Philippe v State of New York, 248 AD2d 827 [3d Dept 1998]; Estrella v State of New York, UID No. 2008-018-634 [Ct Cl, Fitzpatrick, J., Sept. 3, 2008]; Desenclos v State of New York, UID No. 2007-042-514 [Ct Cl, Siegel, J., July 23, 2007]).
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 (see Rubinstein Affirmation, Exhibit 1). This assertion is corroborated by claimant's affidavit of service of the claim, which states that the claim was served on the Attorney General by first class mail (see Affidavit of Service, sworn to April 26, 2017). Claimant has submitted a letter in which he maintains that on June 1, 2017, in response to defendant's motion, he effectuated service by CMRRR (see Claimant's Reply, dated May 31, 2017; Hall Correspondence, undated and received June 7, 2017). Claimant's submissions are unsworn and thus lacking evidentiary value, and although the correspondence bears a number that is identified as "certified RRR," neither his reply nor his letter is accompanied by any documentary evidence, such as a certified mail postal receipt or a signed green card that would indicate that such additional service was made by claimant or received by the Attorney General. Thus, claimant's submissions are insufficient refutation of defendant's demonstration that the claim was not served by CMRRR, and the claim must be dismissed as jurisdictionally defective.
In light of the above, defendant's contention that the claim fails to state a cause of action need not be addressed.
Accordingly, it is
ORDERED, that motion number M-90512 is GRANTED, and claim number 129645 is DISMISSED.
October 4, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 129645, filed May 1, 2017;
(2) Affidavit of Service of Ralph Hall, sworn to April 26, 2017;
(3) Notice of Motion, dated May 28, 2017;
(4) Affirmation of Heather R. Rubinstein, AAG, dated May 26, 2017, with Exhibits 1-2;
(5) Reply of Ralph Hall to Defendant's Motion to Dismiss, dated May 31, 2017;
(6) Undated Correspondence of Ralph Hall, received June 7, 2017.