Claim was dismissed for improper service by regular mail.
|Claimant(s):||MIGUEL RIVERA, 15A3384|
|Claimant short name:||RIVERA|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Miguel Rivera, Pro Se|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Glenn C. King, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 7, 2019|
|See also (multicaptioned case)|
Defendant moves for dismissal on the ground the claim was not served in the manner required by Court of claims Act § 11.
Claimant, a pro se inmate in the custody of the Department of Corrections and Community Supervision, alleges he chipped a tooth when he bit down on a foreign object in his beef patty at Great Meadow Correctional Facility on June 19, 2016. By motion filed May 20, 2019, and initially made returnable July 19, 2019, defendant seeks dismissal of the claim pursuant to Court of Claims Act § 10 and § 11 on the grounds it was improperly served by regular mail.
By Order dated May 10, 2019, all motions relating to this claim were to be made returnable on or before July 3, 2019. While the instant motion was filed May 20, 2019, defense counsel asserts that, due to clerical error, it was not made returnable until July 19, 2019.
As a result of this error, the motion was not in compliance with this court's Order dated May 10, 2019. Nevertheless, jurisdictional defenses may be waived only by defendant's failure to raise the defense in either a pre-answer dismissal motion or in a responsive pleading (see Court of Claims Act § 11 [c]; Steele v State of New York, 145 AD3d 1363 [3d Dept 2016]). Here, the objection to the manner of service was raised as an affirmative defense in defendant's answer. Accordingly, the motion must be considered on the merits.
Defendant contents in support of its motion that the claim was served by ordinary mail rather than personal service or certified mail, return receipt requested, as required by Court of Claims Act § 11 (a) (i). Defendant supports its motion with a copy of the envelope in which the claim was mailed, which contains none of the indicia of a certified mailing (see defendant's Exhibit A).
Court of Claims Act § 11 (a) (i) requires that the claim be filed with the Clerk of the Court and that "a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general . . ." Inasmuch as the filing and service requirements of Court of Claims Act § 10 and § 11 are jurisdictional in nature, they must be strictly construed (Lurie v State of New York, 73 AD2d 1006, 1007 [3d Dept 1980], affd 52 NY2d 849 ; see also Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ). Absent waiver of the defense of improper service of the claim (Court of Claims Act § 11 [c]), service of the claim by ordinary mail is insufficient to acquire jurisdiction over the defendant (Costello v State of New York, 164 AD3d 1420 [2d Dept 2018]; Encarnacion v State of New York, 133 AD3d 1049 [3d Dept 2015], lv denied 26 NY3d 919 ; Brown v State of New York, 114 AD3d 632 [2d Dept 2014]; Fulton v State of New York, 35 AD3d 977 [3d Dept 2006], lv denied 8 NY3d 809 ; Govan v State of New York, 301 AD2d 757 [3d Dept 2003], lv denied 99 NY2d 510 ).
The defendant established through submission of a copy of the envelope in which the claim was mailed that the claim was improperly served by ordinary mail rather than one of the methods prescribed by Court of Claims Act § 11 (a) (i). Notably, none of the affidavits of service filed in the Office of the Clerk of the Court of Claims reflect service of the claim by certified mail, return receipt requested. To the extent claimant opposes the motion with a copy of a return receipt card indicating certified mail was received by the Attorney General's Office on August 26, 2016, this return receipt pre-dates the claim, which was verified October 3, 2016.
Inasmuch as the defendant preserved its objection to the manner of service by raining it as its third affirmative defense in its answer (Court of Claims Act § 2 [c]), the claim must be dismissed.
Based on the foregoing, the defendant's motion is granted, and the claim is dismissed.
August 7, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims