New York State Court of Claims

New York State Court of Claims
FORBES v. STATE OF NEW YORK, # 2019-038-593, Claim No. 125520, Motion No. M-94584

Synopsis

Defendant's motion to dismiss the claim for lack of jurisdiction granted. Claim was improperly served by regular first class mail.

Case information

UID: 2019-038-593
Claimant(s): ROGER FORBES
Claimant short name: FORBES
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 125520
Motion number(s): M-94584
Cross-motion number(s):
Judge: W. BROOKS DeBOW
Claimant's attorney: ROGER FORBES, Pro se
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 9, 2019
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for property that was allegedly lost during a search of his cell at Green Haven Correctional Facility on September 15, 2014. Defendant moves to dismiss the claim on the ground that the Court lacks jurisdiction over the claim as it was untimely and improperly served. Claimant opposes the motion, arguing solely that the claim was timely.

As an initial matter, to the extent defendant's motion seeks dismissal on the ground that the claim is untimely pursuant to Court of Claims Act 10 (9), which requires that an inmate property claim "be filed and served within [120] days after the date on which the inmate has exhausted" the available administrative remedies (see Rubinstein Affirmation, 8), the Court declines to dismiss the claim on that basis. According to the Inmate Claim Form that is attached to the claim, claimant's administrative appeal from the denial of his property claim was denied on December 9, 2014 (see Claim No. 125520, unenumerated attachments), and the claim accrued on that date (see Scott v State of New York, 137 AD3d 1434, 1434 [3d Dept 2016], lv denied 27 NY3d 911 [2016]). Thus, claimant had 120 days, or until April 8, 2015, to file and serve this claim, and the claim was filed with the Clerk of the Court of Claims on January 12, 2015 and served on the Attorney General on January 20, 2015, well within the 120-day time frame.

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). It is well established that the service requirements of the Court of Claims Act must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Martinez v State of New York, 282 AD2d 580, 580 [2d Dept 2001], lv denied 96 NY2d 720 [2001]). Service of the claim by ordinary mail is insufficient to acquire personal jurisdiction over the defendant (Govan v State of New York, 301 AD2d 757, 758 [3d Dept 2003], lv denied 99 NY2d 510 [2003]), 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 [2001], rearg denied 96 NY2d 855 [2001]; 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 on January 20, 2015 (see Rubinstein Affirmation in Support of Motion to Dismiss, 2-3, 9, Exhibits A-B). The envelope in which the claim was served on the Attorney General's office bears regular first class postage, with no indicia that it was served by CMRRR. The jurisdictional defense was preserved by defendant's raising it with particularity in its verified answer (see id. at 5, Exhibit D [Verified Answer], 4), as required by Court of Claims Act 11 (c). Claimant has failed to address whether the claim was properly served, and thus has not controverted defendant's showing that the claim was served by ordinary first class mail. Significantly, appended to claimant's opposition papers is a copy of the envelope in which the claim was served, which, like the copy of the envelope appended to defendant's moving papers, bears only regular first class postage (see Forbes Affirmation in Opposition, unnumbered exhibit). Thus, the claim is jurisdictionally defective and must be denied.

Accordingly, it is

ORDERED, that defendant's motion number M-94584 is GRANTED and claim number 125520 is hereby DISMISSED; and it is further

ORDERED, that claim number 125520 is STRICKEN from the Court's December 5, 2019 trial calendar.

October 9, 2019

Saratoga Springs, New York

W. BROOKS DeBOW

Judge of the Court of Claims

Papers considered:

1. Claim No. 125520, filed January 12, 2015;

2. Verified Answer, filed February 23, 2015;

3. Notice of Motion, dated September 16, 2019;

4. Affirmation of Heather R. Rubinstein, AAG, in Support of Motion to Dismiss, dated September 16, 2019, with Exhibits A-D;

5. Affirmation of Roger Forbes in Opposition of Defendant's Motion, dated

dated September 26, 2019, with unenumerated exhibit.