Defendant's motion to dismiss is granted due to claimant's failure to serve the claim by certified mail, return receipt requested, as required by Court of Claims Act § 11 (a).
|Claimant short name:||REID|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-92113, M-92237|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Cory Reid, Pro Se|
|Defendant's attorney:||Hon. Barbara D. Underwood, Attorney General
By: Nicole Procida, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 1, 2018|
|See also (multicaptioned case)|
Claimant, proceeding pro se, filed the instant claim on November 20, 2017, seeking damages for the alleged negligence of arresting officers and the judge involved in the arrest and prosecution of claimant on several traffic misdemeanors. On its own motion, the Court issued an Order to Show Cause, dated April 6, 2018 and filed on April 13, 2018, directing claimant to demonstrate why the claim should not be dismissed for lack of jurisdiction based upon claimant's failure to comply with the service requirements of Court of Claims Act § 11. The Order to Show Cause was served upon claimant by first class mail, in accordance with the directives of that Order, at the last address provided by claimant. Thereafter, defendant filed a pre-answer motion to dismiss the claim on the ground that the Court lacks jurisdiction over the claim. As of the date of this Decision and Order, claimant has not responded to either the Order to Show Cause or defendant's motion to dismiss.
"A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept. 2011]; see Court of Claims Act § 10 , [3-b]). Court of Claims Act § 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." "[A]s suits against defendant are permitted only by virtue of its waiver of sovereign immunity and are in derogation of the common law, the failure to strictly comply with the filing or service provisions of the Court of Claims Act divests the court of subject matter jurisdiction and compels dismissal of the claim" (Caci v State of New York, 107 AD3d 1121, 1122 [3d Dept. 2013] [internal quotation marks and citations omitted]; see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 ; Rodriguez v State of New York, 307 AD2d 657, 657 [3d Dept. 2003]). Once challenged, the burden is upon the claimant to establish proper service by a preponderance of the credible evidence (see Caci v State of New York, 107 AD3d at 1124; Boudreau v Ivanov, 154 AD2d 638, 639 [2d Dept. 1989]; Aquila v Aquila, 129 AD2d 544, 545 [2d Dept. 1987]).
Defendant argues that claimant failed to serve the claim by certified mail, return receipt requested (Procida Aff. ¶ 3). In support of its contention, defendant attached to its affirmation in support of its motion a copy of the envelope in which the claim was mailed, showing that the claim was mailed using regular U.S. mail postage (see Procida Aff., Exhibit A). Claimant has not submitted an affidavit of service or a return receipt establishing proper service. "Alternative 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] [citations omitted]). 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]).
In view of the foregoing, the Court need not address defendant's alternate grounds for dismissal.
Based upon the foregoing, it is hereby
ORDERED, that defendant's motion to dismiss (M-92237) is GRANTED; and it is further;
ORDERED, that the Court's motion (M-92113) is vacated as moot; and it is further
ORDERED, that the claim (No. 130594) is DISMISSED.
October 1, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Verified Claim, filed on November 20, 2017.
2. Notice of Motion, dated May 1, 2018; and Affirmation in Support of Motion, affirmed by Nicole Procida, AAG on May 1, 2018 ,with Exhibit A annexed thereto.