Defendant's motion seeking dismissal of the claim for improper service denied because it was not timely made. Competing motions for summary judgment denied as premature because issue was not joined (CPLR 3212 [a]).
|Claimant(s):||BARRY ARKIM, #91-B-0146|
|Claimant short name:||ARKIM|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||BARRY ARKIM, Pro se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Elizabeth A. Gavin, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 5, 2017|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim on December 22, 2015 alleging that he was wrongfully confined in keeplock at Green Haven Correctional Facility between June 23, 2015 and July 9, 2015. Claimant moves for summary judgment (Motion No. M-90244). Defendant opposes the motion and cross-moves to dismiss the claim due to improper service, and for summary judgment (Motion No. CM-90428). Claimant has submitted papers in reply to defendant's cross motion.
Defendant's cross-motion is seeking to dismiss the claim on the jurisdictional ground that it was improperly served by regular mail because 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 is a jurisdictional defect that 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]). The Court of Claims Act provides that an objection or defense based on the failure to properly serve the claim "is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading" (Court of Claims Act § 11 [c]).
Defendant's submission demonstrates that the claim was served on defendant on December 28, 2015 by regular mail (see Gavin Affirmation, Exhibit B; Exhibit C, Sub-Exhibit 1). Inasmuch as the Rules of the Court of Claims provide that service of a responsive pleading "shall be made within 40 days of the service of the pleading to which it responds" (22 NYCRR §206.7 [a]), service of the pre-answer motion to dismiss or an answer asserting improper service was required no later than February 8, 2016.(1) However, the records of the Clerk of the Court of Claims neither reflect nor contain any answer filed by defendant in which the defense is preserved, and neither party has referred to the answer or appended any answer to their motion papers. This motion was made and filed more than 15 months beyond the allowable 40 days, and is therefore untimely. Accordingly, that branch of defendant's cross-motion seeking dismissal of the claim due to improper service will be denied.
The parties' competing motions for summary judgment will both be denied as premature. The CPLR provides that "[a]ny party may move for summary judgment in any action, after issue has been joined" (CPLR 3212 [a] [emphasis added]). As noted above, no answer to the claim has been filed with the Clerk of the Court, and neither parties' motion papers are appended by a copy of an answer, as required by CPLR 3212 (b). Thus, it has not been demonstrated that issue has been joined, and the Court may not consider the competing motions (see City of Rochester v Chiarella, 65 NY2d 92, 101 ).
Accordingly, it is
ORDERED, that claimant's motion number M-90244 is DENIED; and it is further
ORDERED, that defendant's cross-motion CM-90428 is DENIED in its entirety.
October 5, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 127257, filed December 22, 2015;
(2) Notice of Motion for Summary Judgment (M-90244), dated April 4, 2017;
(3) Affidavit of Barry Arkim in Support of Motion for Summary Judgment, sworn to April 4,
2017, with Exhibits A-D;
(4) Notice of Cross Motion (CM-90428), dated May 16, 2017;
(5) Affirmation of Elizabeth A. Gavin, AAG, in Support of Cross Motion, dated May 16, 2017,
with Exhibits A-H;
(6) Affidavit in Opposition to Defendant's Cross-Motion for Summary Judgment of Barry Arkim, sworn to June 19, 2017, with attachment.
1. February 6, 2016, the fortieth day after the service of the claim fell on a Saturday, and defendant's time to serve its answer was extended by operation of law to the following business day, Monday, February 8, 2016.