Defendant's motion to dismiss on jurisdictional grounds granted. The claim was served by ordinary mail, not CMRRR.
|Claimant short name:||WRIGHT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||No Appearance|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Stephen Barry, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 10, 2019|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for 77 days of allegedly wrongful confinement in the Solitary Housing Unit (SHU) at Green Haven Correction Facility (CF) from October 15, 2018 to December 31, 2018. Defendant moves in lieu of answer to dismiss the claim on the ground that the Court lacks jurisdiction because the claim was served by ordinary mail. Claimant has not submitted opposition to the motion, which will be granted for the reasons that follow.
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, 819 [3d Dept 2001], lv denied 96 NY2d 708 , rearg denied 96 NY2d 855 ; Philippe v State of New York, 248 AD2d 827, 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 Barry Affirmation in Support of Motion to Dismiss, ¶¶ 2-3, Exhibit A). The envelope in which the claim was mailed bears no indicia that the claim was served by CMRRR (see id., Exhibit B),(1) and the affidavit of service that was filed with the claim, which was sworn to on April 4, 2019, recites that the claim was placed in the Green Haven CF mailbox on April 4, 2019 but makes no reference to the manner of service (see Wright Affidavit of Service, sworn to April 4, 2019). Claimant has not opposed the motion and thus has not controverted defendant's showing that the claim was served by ordinary mail. Therefore, the claim must be dismissed for claimant's failure to obtain personal jurisdiction over defendant.
Accordingly, it is
ORDERED, that defendant's motion number M-94156 is GRANTED and claim number 132904 is hereby DISMISSED.
September 10, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim number 132904, filed April 8, 2019;
2. Affidavit of Service of Ronald Wright, sworn to April 4, 2019;
3. Notice of Pre-Answer Motion (M-94156), dated June 21, 2019;
4. Affirmation of Stephen Barry, AAG, in Support of Motion to Dismiss, dated June 21, 2019, with Exhibits A-B;
5. Affidavit of Service of Susan Martinelli, dated June 21, 2019;
6. Correspondence of Kimberley Broad, Principal Law Clerk, dated August 21, 2019;
7. Facsimile Transmission of Sue Martinelli, Legal Assistant, Office of the Attorney General,
dated August 27, 2019, with attachments;
8. Correspondence of Kimberley Broad, Principal Law Clerk, dated August 28, 2019;
9. Correspondence of Stephen Barry, AAG, dated September 3, 2019, with attachment.
1. Because the copy of the envelope attached to defendant's motion as Exhibit B was illegible, defendant provided the original envelope to the Court for its review in ruling on the instant motion (see Barry Correspondence, dated Sep. 3, 2019, with attachment).