Claim dismissed, improper service without return receipt requested.
|Claimant short name:||DWYER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claimant's attorney:||CHRIS DWYER
|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|
|See also (multicaptioned case)|
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 ). 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  ["(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
Judge of the Court of Claims