New York State Court of Claims

New York State Court of Claims
MITCHELL v. THE STATE OF NEW YORK, # 2018-015-172, Claim No. 131461, Motion No. M-92661


Defendant's pre-answer dismissal motion was granted on the grounds this Court lacks jurisdiction to review an administrative determination of the Office of Victim Services and the claim was improperly served by Federal Express delivery service.

Case information

UID: 2018-015-172
Claimant(s): SETH MITCHELL
Claimant short name: MITCHELL
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 131461
Motion number(s): M-92661
Cross-motion number(s):
Claimant's attorney: Seth Mitchell, Pro Se
Defendant's attorney: Honorable Barbara D. Underwood, Attorney General
By: Anthony Rotondi, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: October 18, 2018
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Defendant moves for dismissal pursuant to CPLR 3211 (a) (2) on the grounds the claim was not served in accordance with the jurisdictional requirements of Court of Claims Act 11 (a) (i) and that this Court lacks jurisdiction over the subject matter of the claim.

Claimant alleges the New York State Office of Victim Services violated Executive Law Article 22 in failing to make "good faith, timely Emergency Awards under Office of Victim Services ('OVS') Claim Nos. 765021 and 769373" (defendant's Exhibit A, 2). In support of its pre-answer dismissal motion, defendant contends, first, that the claim was served improperly by Federal Express delivery service rather than personal service or certified mail, return receipt requested, as required by Court of Claims Act 11 (a) (i) and, second, that this Court lacks jurisdiction to review the administrative determination at issue in this case.

Court of Claims Act 11 (a) (i) requires that a 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 . . ." Absent waiver of the defense of improper service of the claim (Court of Claims Act 11 [c]), service of the claim by Federal Express delivery is insufficient to acquire jurisdiction over the defendant (Femminella v State of New York, 71 AD3d 1319 [3d Dept 2010]; Negron v State of New York, 257 AD2d 652 [2d Dept 1999]). Indeed, "[a]lternative mailings which do not equate to certified mail, return receipt requested, are inadequate and do not comply with Court of Claims Act 11 (a)" (Hodge v State of New York, 213 AD2d 766, 767 [3d Dept 1995]).

Notwithstanding claimant's reference to defendant's improper service argument as "trifling" (claimant's statement in opposition, 2), the service requirements of Court of Claims Act 11 are jurisdictional in nature and must be strictly construed (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Encarnacion v State of New York, 133 AD3d 1049 [3d Dept 2015], lv denied 26 NY3d 919 [2016]; 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 [2007]; Govan v State of New York, 301 AD2d 757 [3d Dept 2003], lv denied 99 NY2d 510 [2003]). While claimant contends that his time to serve the claim was extended by two years following his personal service of a notice of intention to file a claim on April 9, 2018, he failed to submit proof in opposition to the instant motion evidencing service of the claim in the manner prescribed by Court of Claims Act 11 (a) (i). Inasmuch as defendant preserved its objection to service by raising it with sufficient particularity in the instant pre-answer dismissal motion, dismissal of the claim on this basis alone is required.

Improper service aside, dismissal is nevertheless required inasmuch as this Court lacks jurisdiction to review administrative agency determinations (City of New York v State of New York, 46 AD3d 1168 [3d Dept 2007], lv denied 10 NY3d 705 [2008[). " 'Regardless of how a claim is characterized, one that requires, as a threshold matter, the review of an administrative agency's determination falls outside the subject matter jurisdiction of the Court of Claims' " (Davis v State of New York, 129 AD3d 1353, 1353-1354 [3d Dept 2015], lv dismissed 26 NY3d 949 [2015], quoting Green v State of New York, 90 AD3d 1577, 1578 [4th Dept 2011], lv dismissed and denied 18 NY3d 901 [2012]). In fact, Article 22 of the Executive Law contains a provision providing judicial review pursuant to CPLR Article 78 (Executive Law 629), which may only be brought in the Supreme Court (CPLR 7804 [b]). Accordingly, this Court lacks subject matter jurisdiction over the instant claim.

Based on the foregoing, defendant's motion is granted and the claim is dismissed.

October 18, 2018

Saratoga Springs, New York


Judge of the Court of Claims

Papers Considered:

  1. Notice of motion, dated June 27, 2018;
  2. Affirmation of Anthony Rotondi, Esq., dated June 27, 2018, with Exhibit A;
  3. Answer in opposition, dated July 6, 2018;
  4. Affidavit of Seth Mitchell, sworn to July 10, 2018, with Exhibits A and B.