Defendant's motion to dismiss claim on jurisdictional grounds granted due to improper service by ordinary mail.
|Claimant short name:||BROWN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||NORMAN BROWN, Pro se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Jeane L. Strickland Smith, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 29, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking monetary damages for alleged misconduct by correction officers at Green Haven Correctional Facility. Defendant moves in lieu of answer to dismiss the claim on jurisdictional grounds because the claim was served by ordinary mail. Claimant has not submitted opposition to the motion, which will be granted.
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]).
In support of its motion to dismiss, defendant has demonstrated that the claim was served upon the Attorney General not by CMRRR, but by regular first class mail (see Strickland Smith Affirmation, ¶ 3, Exhibit A). The affidavit of service of the claim that was filed by claimant with the claim indicates only that the claim was placed in a pre-paid envelope and placed in an official mailbox, without reference to certified mail. Accordingly, in the absence of proof of service by CMRRR, the claim is jurisdictionally defective and must be dismissed. To the extent that defendant contends that the claim should be dismissed because it was not verified as required by Court of Claims Act § 11 (b), that argument need not be addressed in light of the jurisdictional defect in the manner of service of the claim.
Accordingly, it is
ORDERED, that defendant's motion number M-91538 is GRANTED and claim number 130528 is hereby DISMISSED.
(1) Claim Number 130528, filed November 8, 2017;
(2) Affidavit of Service, sworn to October 31, 2017;
(3) Notice of Motion, dated December 11, 2017;
(4) Affirmation of Jeane L. Strickland Smith, AAG, dated December 11, 2017, with Exhibits A-B.
March 29, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims