New York State Court of Claims

New York State Court of Claims
DWYER v. THE STATE OF NEW YORK, # 2017-054-022, Claim No. 127203, Motion No. M-91360

Synopsis

Claim dismissed, improper service without return receipt requested.

Case information

UID: 2017-054-022
Claimant(s): CHRIS DWYER
Claimant short name: DWYER
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 127203
Motion number(s): M-91360
Cross-motion number(s):
Judge: WALTER RIVERA
Claimant's attorney: CHRIS DWYER
Pro Se
Defendant's attorney: HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
By: Glenn C. King, Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 9, 2018
City: White Plains
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The following papers numbered 1-2 were read and considered by the Court on defendant's motion to dismiss

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

Claimant's Letter Dated December 1, 2017 Opposing the Motion to Dismiss.........2

On December 16, 2015, defendant received a copy of the claim by certified mail without a return receipt requested (Ex. A). In its answer, defendant raised lack of jurisdiction based upon claimant's unauthorized manner of service upon defendant by certified mail without a return receipt requested (Ex. B, 13). Defendant now moves to dismiss the claim due to the improper service.

Court of Claims Act 11 (a) (i) provides that service upon defendant "shall be" by personal service or by certified mail, return receipt requested. Regular mail is not a manner of service authorized by Court of Claims Act 11 (a) (see Brown v State of New York, 114 AD3d 632 [2d Dept 2014]) and certified mail, without a return receipt requested, is not a manner of service authorized by Court of Claims Act 11 (a).

The service requirements set forth in Court of Claims Act 10 and 11 are jurisdictional in nature and require strict compliance as a precondition of suit against the State (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). A failure to comply with any of the service provisions is a jurisdictional defect compelling the dismissal of the claim (see Kolnacki v State of New York, 8 NY3d 277, 281 [2007] ["(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect"]; Welch v State of New York, 286 AD2d 496, 497-98 [2d Dept 2001]).

Accordingly, defendant's motion to dismiss Claim No. 127203 is hereby GRANTED.

January 9, 2018

White Plains, New York

WALTER RIVERA

Judge of the Court of Claims