New York State Court of Claims

New York State Court of Claims
ALSAIFULLAH v. THE STATE OF NEW YORK AND ITS INDEMNIFIED EMPLOYEES, SERVANTS AND AGENTS, # 2017-054-005, Claim No. 129374, Motion No. M-91076

Synopsis

Untimely service of claim, service of Amended Claim cannot cure a jurisdictionally defective claim.

Case information

UID: 2017-054-005
Claimant(s): TALIB ALSAIFULLAH
Claimant short name: ALSAIFULLAH
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK AND ITS INDEMNIFIED EMPLOYEES, SERVANTS AND AGENTS
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 129374
Motion number(s): M-91076
Cross-motion number(s):
Judge: WALTER RIVERA
Claimant's attorney: TALIB ALSAIFULLAH
Pro Se
Defendant's attorney: HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
By: Paul F. Cagino, Assistant Attorney General
Third-party defendant's attorney:
Signature date: October 18, 2017
City: White Plains
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The following papers numbered 1-3 were read and considered by the Court on the State's motion to dismiss:

Notice of Motion, Attorney's Supporting Affirmation and Exhibits.......................1

Claimant's Letter Opposing the Motion..................................................................2

Reply Affirmation and Exhibits...............................................................................3

Claim No. 129374 alleges that during claimant's incarceration at Greene Correctional Facility on October 12, 2016 his property was lost or stolen and additional property was lost or stolen upon his transfer to Washington Correctional Facility. Claimant exhausted his administrative remedies as of February 10, 2017 and therefore this claim had to be served and filed within 120 days after February 10, 2017 (Court of Claims Act 10 [9]).

The State moves to dismiss this claim due to claimant's failure to properly and timely serve defendant with a claim. Specifically, the claim was served by priority mail on March 2, 2017 (The State's Ex. A), which is not a proper method of service under Court of Claims Act 11 (a) (i) (see Miranda v State of New York, 113 AD3d 943 [3d Dept 2014] [claim dismissed on jurisdictional grounds because service by priority mail is not an authorized method of service]). Accordingly, the claim warrants dismissal.

It is also noted that the Amended Claim (The State's Ex. C) was untimely served because it was not served within 120 days after February 10, 2017, when claimant had exhausted his administrative remedies (Court of Claims Act 10 [9]; see Young v State of New York, 138 AD3d 1357 [3d Dept 2016]). In any event, even if the Amended Claim had been timely served, claimant cannot cure a jurisdictionally defective claim by service of an Amended Claim (see Hogan v State of New York, 59 AD3d 754 [3d Dept 2009]; Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983 [3d Dept 1986] [jurisdictional defect cannot be cured by amendment]).

Thus, the State's motion to dismiss is GRANTED.

October 18, 2017

White Plains, New York

WALTER RIVERA

Judge of the Court of Claims