New York State Court of Claims

New York State Court of Claims
HADDEN v. THE STATE OF NEW YORK, # 2018-040-065, Claim No. 130483, Motion No. M-92179

Synopsis

State's Motion to Dismiss on the basis Claimant served the Claim by regular mail and not by certified mail, return receipt requested, as required by CCA 11(a) granted and Claim dismissed.

Case information

UID: 2018-040-065
Claimant(s): ANDREW HADDEN
Claimant short name: HADDEN
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) : Caption amended to reflect the State of New York as the proper defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130483
Motion number(s): M-92179
Cross-motion number(s):
Judge: CHRISTOPHER J. McCARTHY
Claimant's attorney: Andrew Hadden, Pro Se
Defendant's attorney: BARBARA D. UNDERWOOD
Attorney General of the State of New York
By: Glenn C. King, Esq., AAG
Third-party defendant's attorney:
Signature date: July 30, 2018
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

For the reasons set forth below, Defendant's Motion to dismiss the Claim based upon lack of subject matter and personal jurisdiction pursuant to CPLR 3211(a)(2) and (8) for failure to comply with the service requirements of Court of Claims Act 11(a) is granted and the remainder of the Motion is denied as moot.

This pro se Claim, which was filed with the office of the Clerk of the Court on October 30, 2017, asserts that, while incarcerated at Franklin Correctional Facility, on or around August 17, 2016, Claimant was assaulted by another person.

Defendant seeks dismissal of the Claim on the basis that Claimant failed to serve the Claim upon Defendant in the manner required by Court of Claims Act 11(a), by serving it by ordinary mail (Affirmation of Glenn C. King, Esq., Assistant Attorney General [hereinafter, "King Affirmation"], 2). As pertinent to the instant matter, Court of Claims Act  11(a)(i) provides that the Notice of Intention to File a Claim, if one is served, and the Claim each shall be served personally or by certified mail, return receipt requested, upon the Attorney General within the time period provided in Court of Claims Act 10(3) and 10(3-b).

In his affirmation submitted in support of the Motion, Defense counsel asserts that, on October 20, 2017, Claimant served the Notice of Intention to File a Claim and the Claim upon the Attorney General in the same envelope (King Affirmation, 3, and Ex. A attached thereto). In reviewing Exhibit A, which includes a photocopy of the envelope in which the Notice of Intention to File a Claim and the Claim purportedly were mailed, the Court notes that the postage amounted to $1.40 and that there is no certified mail or return receipt sticker affixed to either the front or the back of the envelope. Claimant did not oppose the State's Motion.

Defendant asserts that, in preparing for this Motion, he found additional Notices of Intention to File a Claim served by Claimant, which echo the allegations in the instant Claim, with the exception that they allege an assault that occurred on September 17, 2016 as opposed to August 17, 2016. In a notice of intention received April 17, 2017, Claimant alleges assault "by another, causing substantial injury to his person including a broken jaw" on September 17, 2016 (King Affirmation, 4, and Ex. B attached thereto). In a notice of intention received May 16, 2017, Claimant asserts that, on or around September 17, 2016, he was assaulted, causing substantial injury to his person (id. and Ex. C attached thereto). In reviewing Exhibits B and C, which include photocopies of the applicable envelopes in which the Notices of Intention to File a Claim purportedly were mailed, the Court notes that the postage amounted to $1.40 and $.46, respectively, and that there is no certified mail or return receipt sticker affixed to the front of either envelope. Defendant asserts that, even if either of these Notices of Intention was applicable to the instant matter, they both were improperly served upon Defendant by regular mail, rather than by certified mail, return receipt requested, as required by Court of Claims Act 11(a)(i).

The failure to properly serve the Attorney General gives rise to a defect in jurisdiction, which, if not raised with particularity, is subject to the waiver provisions of Court of Claims Act  11(c) (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]; Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).

Section 11 of the Court of Claims Act constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State and, thus, must be strictly construed (Buckles v State of New York, 221 NY 418 [1917]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], appeal denied 64 NY2d 607 [1985]). The Court cannot waive a defect in jurisdiction that has been timely raised (Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). Defendant timely and properly raised, with particularity, in its Answer, dated November 27, 2017, as its First Defense, that the Notice of Intention was served by ordinary mail, and not served personally or by certified mail, return receipt requested, as required by Court of Claims Act 11(a) and, as its Second Defense, that the Claim was served by ordinary mail, and not served personally or by certified mail, return receipt requested, as required by Court of Claims Act 11(a). Therefore, the Court concludes that Defendant established that the Notice of Intention and Claim were improperly served upon it.

Based upon the foregoing, Defendant's Motion is granted and the Claim is hereby dismissed for failure to properly serve the Notice of Intention and Claim upon the Attorney General as required by Court of Claims Act 11(a). The remainder of the Motion is denied as moot.

July 30, 2018

Albany, New York

CHRISTOPHER J. McCARTHY

Judge of the Court of Claims

The following papers were read and considered by the Court on Defendant's Motion for dismissal:

Papers Numbered

Notice of Motion, Affirmation, and Exhibits attached 1

Papers filed: Claim, Answer