Defendant's motion to dismiss for improper manner of service of the claim denied. Defendant did not submit proof that claim was served by regular mail, not CMRRR.
|Claimant short name:||ALVAREZ|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||JOSE ALVAREZ, Pro se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Heather R. Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 11, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking damages for injuries allegedly sustained after he was assaulted by another inmate at Green Haven Correctional Facility on January 18, 2015. Defendant moves to dismiss the claim on the ground that the Court lacks jurisdiction because the claim was served by ordinary mail. Claimant opposes the motion.
Court of Claims Act § 11 (a) (i) requires that if a claim is served upon the Attorney General by mail, it must be accomplished by certified mail, return receipt requested (CMRRR). Service of the claim by ordinary mail is insufficient to acquire personal jurisdiction over the defendant (see Govan v State of New York, 301 AD2d 757, 758 [3d Dept 2003], lv denied 99 NY2d 510 ), and the failure to effect service by CMRRR is a jurisdictional defect that requires dismissal of the claim (see Turley v State of New York, 279 AD2d 819 [3d Dept 2001], lv denied 96 NY2d 708 ; Philippe v State of New York, 248 AD2d 827 [3d Dept 1998]; Estrella v State of New York, UID No. 2008-018-634 [Ct Cl, Fitzpatrick, J., Sept. 3, 2008]).
Defendant has not borne its burden of demonstrating that the claim was served upon the Attorney General not by CMRRR, but by regular first class mail. The affirmation of the AAG who is defending the claim asserts that its motion is supported by proof that the claim was served by regular mail on May 26, 2015 (see Rubinstein Affirmation, ¶ 3), but the exhibit to which it refers is a duplicate of the notice of intention and an envelope that bears indicia of service by CMRRR (see id., Exhibit 2; Exhibit 1), and no other proof of the manner of service of the claim is submitted.
Accordingly, it is
ORDERED, that defendant's motion number M-91158 is DENIED.
January 11, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 126231, filed June 1, 2015;
(2) Verified Answer, filed June 29, 2015;
(3) Notice of Motion to Dismiss, dated October 2, 2017;
(4) Affirmation of Heather R. Rubinstein, AAG, in Support of Motion to Dismiss, dated
October 2, 2017, with Exhibits 1-3;
(5) Traverse of Jose Alvarez to Defendant's Motion to Dismiss, dated October 6, 2017.