Defendant's motion to dismiss the claim for improper service was granted.
|Claimant short name:||WALKER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Joshua Walker, Pro Se|
|Defendant's attorney:||Honorable Barbara D. Underwood, Attorney General
By: Glenn C. King, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 16, 2018|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim for improper service pursuant to Court of Claims Act § 11 (a).
Claimant, an inmate in the custody of the Department of Corrections and Community Supervision, seeks damages for wrongful confinement to the Special Housing Unit at Great Meadow Correctional Facility following a prison disciplinary determination. Claimant was allegedly subject to punitive confinment from January 6, 2015 to April 4, 2015 when he was released upon the administrative reversal of the disciplinary determination on April 3, 2015. A notice of intention was allegedly sent by certified mail on June 9, 2015 and received in the Office of the Attorney General on June 15, 2015 (Exhibit F attached to claim filed in the Office of the Chief Clerk of the Court of Claims). The claim in this matter was thereafter filed on November 16, 2015. An affidavit of service, filed together with the claim, indicates that the claim was served on an unspecified date "via the U.S. Mail, or that said papers were placed in the facility Mail Box for mailing the same" (see Affidavit of Service attached to the filed claim).
Defendant contends in support of its motion that the claim was served by ordinary mail rather than personal service or certified mail, return receipt requested, as required by Court of Claims Act § 11 (a) (i). Defendant supports its motion with a copy of the envelope in which the claim was mailed, which contains none of the indicia of a certified mailing (see defendant's Exhibit A).
Court of Claims Act § 11 (a) (i) requires that the claim be filed with the Clerk of the Court and that "a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general . . ." Inasmuch as the filing and service requirements of Court of Claims Act §§ 10 and 11are jurisdictional in nature, they must be strictly construed (Lurie v State of New York, 73 AD2d 1006, 1007 [3d Dept 1980], affd 52 NY2d 849 ; see also Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ). Absent waiver of the defense of improper service of the claim (Court of Claims Act § 11 [c]), service of a claim by ordinary mail is insufficient to acquire jurisdiction over the defendant (Costello v State of New York, ___AD3d ___, 2018 NY Slip Op 06227 [2d Dept 2018]; Encarnacion v State of New York, 133 AD3d 1049 [3d Dept 2015], lv denied 26 NY3d 919 ; Brown v State of New York, 114 AD3d 632 [2d Dept 2014]; Fulton v State of New York, 35 AD3d 977 [3d Dept 2006], lv denied 8 NY3d 809 ; Govan v State of New York, 301 AD2d 757 [3d Dept 2003], lv denied 99 NY2d 510 ).
Defendant established through submission of a copy of the envelope in which the claim was mailed that the claim was improperly served by ordinary mail rather than one of the methods prescribed by Court of Claims Act § 11 (a) (i). Notably, the affidavit of service filed in the Office of the Clerk of the Court of Claims fails to reflect service of the claim by certified mail, return receipt requested. Inasmuch as the defendant preserved its objection to the manner of service by raising it as the eleventh affirmative defense in its answer (Court of Claims Act § 11 [c]), the claim must be dismissed.
Based on the foregoing, the defendant's motion is granted, without opposition, and the claim is dismissed.
October 16, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims