State's Motion to Dismiss based upon Claimant's failure to properly serve the Claim granted.
|Claimant(s):||PHILIP J. NORTON, SR., 10-B-1201|
|Claimant short name:||NORTON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||Caption amended to reflect the State of New York as the proper defendant.|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Philip J. Norton, Sr., Pro Se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Thomas Trace, Senior Attorney
|Third-party defendant's attorney:|
|Signature date:||July 6, 2017|
|See also (multicaptioned case)|
For the reasons set forth below, Defendant's Motion to dismiss the Claim based upon lack of subject matter and personal jurisdiction pursuant to CPLR 3211(a)(2) and (8) for failure to comply with the service requirements of Court of Claims Act § 11 is granted. The remainder of the Motion is denied as moot.
This pro se Claim, which was filed with the office of the Clerk of the Court on June 2, 2014, asserts that, on February 25, 2011, while housed at Oneida Correctional Facility, Claimant slipped and fell on ice at the base of a staircase of the T dormitory and injured his finger. It is alleged that the State negligently maintained the area near the staircase, allowing the ice to form, and that Claimant did not receive proper medical care in treating his injury.
Defendant seeks dismissal of the Claim on the basis that Claimant failed to serve the Claim upon Defendant in the manner required by Court of Claims Act § 11(a)(i) (Affirmation of Thomas Trace, Esq., Senior Attorney [hereinafter, "Trace Affirmation"], ¶ 2). As pertinent to the instant matter, Court of Claims Act § 11(a)(i) provides that the Claim be served personally or by certified mail, return receipt requested, upon the Attorney General within the time period provided in Court of Claims Act § 10(3).
In his affirmation submitted in support of the Motion, Defense counsel asserts that, on June 3, 2014, Claimant served the Claim upon the Attorney General by regular mail (Trace Affirmation, ¶¶ 2, 3, 6 and Ex. B attached thereto). In reviewing Exhibit B, which is a photocopy of the front and back of the envelope in which the Claim and Notice of Intention to File a Claim were purportedly mailed, the Court notes that the postage amounted to $.90 and that there is no certified mail or return receipt sticker affixed to either the front or the back of the envelope. Claimant did not oppose the State's Motion.
The failure to properly serve the Attorney General gives rise to a defect in jurisdiction, which, if not raised with particularity, is subject to the waiver provisions of Court of Claims Act § 11(c) (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 ; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 ; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]; Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
Section 11 of the Court of Claims Act constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State and, thus, must be strictly construed (Buckles v State of New York, 221 NY 418 ; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], appeal denied 64 NY2d 607 ). The Court cannot waive a defect in jurisdiction that has been timely raised (Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). Defendant timely and properly raised, with particularity, in its Answer dated July 2, 2014, as its Fourth Affirmative Defense, that the Claim and Notice of Intention to File a Claim were served by regular mail, and not served personally or by certified mail, return receipt requested, as required by Court of Claims Act § 11(a)(i). Therefore, the Court concludes that Defendant established that the Claim was improperly served upon it.
Based upon the foregoing, Defendant's Motion is granted and the Claim is hereby dismissed for failure to properly serve it upon the Attorney General as required by Court of Claims Act § 11(a)(i). The remainder of the Motion is denied as moot.
The Court notes that, by Daily Report dated January 10, 2017, the parties were notified that the trial of this Claim was scheduled for October 31, 2017 at the Court of Claims in Utica, New York. That trial is now unnecessary.
July 6, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Defendant's Motion for dismissal:
Notice of Motion, Affirmation, and Exhibits Attached 1
Papers filed: Claim, Answer