Defendant's motion to dismiss for lack of jurisdiction for failure to serve claim by CRRR. Claimant's motion pursuant to Court of Claims Act § 10 (6) and CPLR 205 (a) is denied. Late claim relief is not available for an inmate's claim for lost or damaged property, and authority to recommence an action pursuant to CPLR 205 (a) does not apply where initial action was dismissed for lack of personal jurisdiction.
|Claimant short name:||GORHAM|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||ELTON GORHAM, 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 11, 2017|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking damages for the alleged destruction of two cassette tapes at Green Haven Correctional Facility (CF) in October 11, 2016. Claimant moves for permission to recommence the action under Court of Claims Act § 10 (6) and CPLR 205 (a) (M-90487). Defendant opposes the motion and cross-moves to dismiss the claim on the grounds that the Court lacks jurisdiction because the claim was improperly served (CM-90671). Claimant has not submitted papers in opposition to defendant's motion to dismiss.
The Court will first address defendant's cross motion as it raises the threshold issue of jurisdiction, and because claimant's motion is unnecessary if defendant's cross motion to dismiss the claim is denied. 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). Service of the claim by ordinary mail is insufficient to acquire personal jurisdiction over the defendant (see Govan v State of New York, 301 AD2d 757, 758 [3d Dept 2003], lv denied 99 NY2d 510 ), 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]).
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, ¶ 3, Exhibit C). Claimant has not controverted this showing and indeed concedes that the claim was improperly served (Gorham Affidavit, ¶ 3).(1) The jurisdictional defense was preserved by defendant raising it with particularity in its verified answer (see Verified Answer, Eleventh Defense; Court of Claims Act § 11 [c] [ii]). Thus, the claim must be dismissed as claimant failed to obtain personal jurisdiction over defendant.
Claimant's motion for late claim relief and to recommence it will be denied for the following reasons. First, permission to grant late claim relief pursuant to Court of Claims Act § 10 (6) is not available for claims for lost personal property brought pursuant to Court of Claims Act § 10 (9) (Encarnacion v State of New York, 133 AD3d 1049, 1050 [3d Dept 2015], lv denied 26 NY3d 919 ; Roberts v State of New York, 11 AD3d 1000, 1001 [4th Dept 2004]). Second, the option to recommence an action is not available when, as here, the initial claim was dismissed for lack of personal jurisdiction over defendant (see Husic v State of New York, UID No. 2012-044-540, at fn 3 [Ct Cl, Schaewe, J., Oct. 18, 2012]).
Accordingly, it is
ORDERED, that claimant's motion number M-90487 is DENIED; and it is further
ORDERED, that defendant's cross motion number CM-90671 is GRANTED and claim number 129494 is hereby DISMISSED.
October 11, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 129494, filed March 29, 2017;
(2) Verified Answer, filed May 9, 2017;
(3) Notice of Motion to Recommence Action (M-90487), dated May 22, 2017;
(4) Affidavit of Elton Gorham in Support of Motion to Recommence, sworn to May 22, 2017;
(5) Notice of Cross Motion to Dismiss (CM-90671), dated June 28, 2017;
(6) Affirmation of Heather R. Rubinstein, AAG, in Support of Cross Motion to Dismiss, dated
June 28, 2017, with Exhibits A-D;
(7) Affidavit of Service of Francine Broughton, sworn to June 27, 2017.
1. The affidavit of service of defendant's cross motion and the affirmation in support indicates that these papers were served the day before the cross motion was made, reflecting an error in the date of either the motion papers or the affidavit of service. Inasmuch as claimant concedes that the claim was improperly served, the Court will overlook this error.