Motion to dismiss granted-claim not sent by certified mail.
|Claimant(s):||DONALD M. DOVE|
|Claimant short name:||DOVE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-92133, M-92200|
|Claimant's attorney:||DONALD M. DOVE
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
Attorney General for the State of New York
By: Douglas R. Kemp, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 20, 2018|
|See also (multicaptioned case)|
The following papers numbered 1-3 were read and considered by the Court on defendant's motion to dismiss Claim No. 126799 (Motion No. M-92133) and claimant's motion for the appointment of counsel (Motion No. M-92200):
Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1
Claimant's Opposition Papers and Exhibits..............................................................2
Claimant's Letter Seeking the Appointment of Counsel...........................................3
Claim No. 126799 alleges that on July 22, 2015, during claimant's incarceration at Eastern NY Correctional Facility, there was a flood and claimant slipped and fell in the vocational school building and sustained injuries (Ex. A). By answer dated November 3, 2015, defendant raised the affirmative defense of lack of jurisdiction based upon claimant's service of the claim by ordinary mail instead of certified mail, return receipt requested (Ex. B, ¶ 8).
Defendant moves to dismiss the claim on the aforenoted ground raised in its answer (Motion No. M-92133). Claimant's opposition to defendant's motion to dismiss explains his reasons why the claim was not sent by certified mail, return receipt requested. Claimant's explanation, however, does not absolve claimant from the statutory requirements of the Court of Claims Act.
Service by regular mail is not an authorized manner of service under Court of Claims Act § 11 (a) (see Brown v State of New York, 114 AD3d 632 [2d Dept 2014]). The service requirements set forth in Court of Claims Act § 11 are jurisdictional in nature and require strict compliance as a precondition of suit against the State (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ). A failure to comply with any of the service provisions set forth in Court of Claims Act § 11 is a jurisdictional defect compelling the dismissal of the claim (see Kolnacki v State of New York, 8 NY3d 277, 281  ["(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect"]; Welch v State of New York, 286 AD2d 496, 497-98 [2d Dept 2001]).
Accordingly, the State's motion to dismiss Claim No. 126799 is hereby GRANTED.
In light of the Court's determination on Motion No. M-92133 to grant defendant's motion to dismiss Claim No. 126799, claimant's motion for the appointment of counsel brought under Motion No. M-92200, is DENIED as moot.
June 20, 2018
White Plains, New York
Judge of the Court of Claims