Defendant's motion to dismiss the claim for lack of jurisdiction due to improper method of service (regular mail) held in abeyance pending submissions from the parties as to whether defendant was served with the amended claim.
|Claimant short name:||ANTROBUS|
|Footnote (claimant name) :|
|Defendant(s):||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: Heather R. Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 3, 2019|
|See also (multicaptioned case)|
Claimant filed this amended claim seeking compensation for an alleged wrongful confinement at Green Haven Correctional Facility for eight days beginning on November 20, 2014. Defendant moves to dismiss the claim on the ground that the Court lacks jurisdiction over the claim because it was served by ordinary mail. Claimant has not opposed the motion.
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 shown that a claim was served on the Attorney General on January 12, 2015 not by CMRRR, but by regular first class mail (see Rubinstein Affirmation in Support of Motion to Dismiss, ¶ 2, Exhibit A). The envelope in which the claim was sent to the Attorney General's Office bears merely a regular first class mail stamp, with no indicia that it was served by CMRRR. The claim that was served on defendant on January 12, 2015 was the same claim that was filed with the Court on the same date (see Claim No. 125516, filed Jan. 12, 2015). However, claimant subsequently filed an amended claim on April 9, 2015 that is currently the claim the Court has before it (see Amended Claim No. 125516, filed Apr. 9, 2015), and that would ordinarily be the operative pleading (see Stella v Stella, 92 AD2d 589, 589 [2d Dept 1983] [amended pleading supersedes original pleading]). While defendant did acknowledge that it may have been served with an amended claim on January 4, 2015, that pleading does not appear to be related to the instant claim but rather to Claim No. 125554, a separate claim served by claimant on the Attorney General (see Rubinstein Affirmation, ¶¶ 5-6, Exhibit D). Further, claimant did not file with the Court an affidavit of service regarding the amended claim, and defendant did not file an answer to the amended claim, and it therefore appears that defendant may not have been served with the amended claim. Thus, in order to determine whether to grant defendant's motion to dismiss, the Court must first determine which pleading is operative, i.e. the original claim or the amended claim. Therefore, proceedings on this motion will be held in abeyance pending a determination as to whether defendant was served with the amended claim, which is annexed as part of this decision, according to the procedure outlined in the decretal paragraphs below.
Accordingly, it is
ORDERED, that defendant's motion number M-94583 is HELD IN ABEYANCE; and it is further
ORDERED, that claimant shall submit an affidavit or other proof establishing that he served the annexed amended claim on the Attorney General, to be filed with the Court and served on the Attorney General no later than fourteen (14) days following the filing of this decision and order; and it is further
ORDERED, that the Attorney General shall submit an affidavit from someone with knowledge of this claim addressing whether the annexed amended claim was served on the Attorney General, to be served and filed with the Court no later than fourteen days (14) following the filing of this decision and order.
Amended Claim No. 125516 Annexed to this Decision and Order
October 3, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 125516, filed January 12, 2015;
2. Verified Answer, filed February 18, 2015;
3. Amended Claim No. 125516, dated April 9, 2015;
4. Notice of Motion, dated September 16, 2019;
5. Affirmation of Heather R. Rubinstein, AAG, in Support of Motion to Dismiss, dated September 16, 2019, with Exhibits A-D;
6. Affidavit of Service of Francine Broughton, sworn to September 17, 2019.