The claim is dismissed for claimant's failure to serve the claim by certified mail, return receipt requested.
|Claimant short name:||MOHAMMAD|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Malik Mohammad, Pro Se|
|Defendant's attorney:||Hon. Eric T. Schneiderman, NYS Attorney General
By: Sean B. Virkler, Assistant Attorney General,
|Third-party defendant's attorney:|
|Signature date:||March 27, 2018|
|See also (multicaptioned case)|
Claimant, an inmate proceeding pro se, filed the instant claim in this action on or about September 1, 2017. The claim alleges causes of action sounding in medical negligence that allegedly took place at Mohawk Correctional Facility (MCF). Claimant alleges that medical staff at MCF failed to prescribe proper medication to claimant and failed to provide proper medical treatment after claimant sustained an injury to his left knee. Claimant alleges that the cause of action accrued "on and prior to 2015/2016" and continued through the "present day of May 2017 ". Defendant seeks to dismiss the claim on the grounds that the Court lacks subject matter jurisdiction over the claim and personal jurisdiction over defendant, and that the claim fails to state a cause of action.
Court of Claims Act § 11 (a) (i) states, in pertinent part, that the claim shall be filed with the Clerk of the Court, and a copy shall be served upon the Attorney General within the times provided for filing with the Clerk of the Court either personally or by certified mail, return receipt requested. Compliance with the filing and service requirements contained in the Court of Claims Act is a jurisdictional prerequisite to bringing and maintaining an action in the Court of Claims (Buckles v State of New York, 221 NY 418 ), and failure to comply constitutes a fatal jurisdictional defect requiring dismissal (Finnerty v New York State Thruway Auth., 75 NY2d 721 ; Suarez v State of New York, 193 AD2d 1037 [3d Dept. 1993]). Any objection or defense based upon the failure to comply with the manner of service requirements is waived unless raised, with particularity, either by a motion to dismiss made before the service of the responsive pleading is required or in the responsive pleading (Court of Claims Act § 11 [c] [ii]). In support of its motion to dismiss, defendant states that the envelope in which the claim was mailed shows that the claim was mailed by regular United States mail. Defendant submits a true and accurate copy of the envelope in which the claim was mailed in support of its motion (Exhibit B), which shows that the claim was mailed by regular mail. In addition, defendant submits the Affidavit of Debra L. Mantell, Legal Assistant II in the Albany Office of the Attorney General, who states that the Attorney General's digital case management system indicates that the claim served on July 31, 2017 was served by regular mail (Exhibit C ¶ 6). Accordingly, because claimant failed to serve the claim by certified mail, return receipt requested, the claim is jurisdictionally defective and must be dismissed (Schaeffer v State of New York, 145 Misc 2d 135, 139 [Ct Cl 1989]).
Because the Court has determined that it lacks subject matter jurisdiction over this claim, the Court need not consider defendant's alternate grounds for dismissal (see Jordan v State of New York, UID No. 2011-049-008 [Ct Cl, Weinstein, J., Sept. 6, 2011]).
Accordingly, it is hereby
ORDERED that defendant's motion number M-91065 is granted and claim number 130211 is dismissed.
March 27, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion to Dismiss, dated September 7, 2017; and Affirmation in Support of Motion to Dismiss, affirmed by Sean B. Virkler, AAG on September 7, 2017, with Exhibits A through C annexed thereto.
2. Affidavit in Opposition to Motion to Dismiss, sworn to by claimant on September 16, 2017, with Attachment.
3. Letter from claimant, dated September 26, 2017.
1. The Court notes that defendant inadvertently labeled its notice of motion as addressing claim number 130128. The claim attached to defendant's motion papers is claim number 130211, and both claimant and defendant clearly address claim number 130211 in their moving papers. Claimant currently has five open claims pending in the Court of Claims, which likely contributed to defendant's error.