Motion to Dismiss Claim for failure to properly serve Claim upon Defendant granted.
|Claimant(s):||EUGENE K. FREEMAN|
|Claimant short name:||FREEMAN|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Eugene K. Freeman, Pro Se|
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Michael T. Krenrich, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||September 11, 2019|
|See also (multicaptioned case)|
For the reasons set forth below, Defendant's Motion to dismiss the Claim based upon lack of subject matter and personal jurisdiction pursuant to CPLR 3211(a)(2) and (8) for failure to comply with the service requirements of Court of Claims Act § 11(a) is granted.
This pro se Claim, which was filed in the office of the Clerk of the Court on February 18, 2015, asserts that Claimant was wrongfully confined to the Special Housing Unit (hereinafter, "SHU") at Bare Hill Correctional Facility. On June 10, 2014, following a Disciplinary Hearing, Claimant was found guilty of the charge of possessing unauthorized organization materials on May 30, 2014. The hearing officer, inter alia, imposed a penalty of 12 days in SHU. Claimant asserts that the search of his dormitory cube was in violation of Defendant's cube frisk procedures.
Claimant served a Notice of Intention to File a Claim upon the Attorney General on October 8, 2014 by certified mail, return receipt requested (Affirmation of Michael T. Krenrich, Esq., Assistant Attorney General [hereinafter, "Krenrich Affirmation"], ¶ 3, and Ex. A attached thereto). Defendant seeks dismissal of the Claim on the basis that Claimant failed to serve the Claim upon Defendant in the manner required by Court of Claims Act § 11(a)(i), by serving it by ordinary mail (Krenrich Affirmation, ¶ 4). As pertinent to the instant matter, Court of Claims Act § 11(a)(i) provides that the Notice of Intention to File a Claim, if one is served, and the Claim, each shall be served personally or by certified mail, return receipt requested, upon the Attorney General within the time period provided in Court of Claims Act § 10(3-b).
In his affirmation submitted in support of the Motion, Defense counsel asserts that, on February 18, 2015, Claimant served a Claim upon the Attorney General by ordinary mail (Krenrich Affirmation, ¶¶ 4, 8, and Ex. B attached thereto). In reviewing Exhibit B, which includes a photocopy of the envelope in which the Claim purportedly was mailed, the Court notes that the postage amounted to $1.19 and that there is no certified mail sticker or return receipt affixed to the front of the envelope. Claimant did not oppose the State's Motion.
The failure to properly serve the Attorney General gives rise to a defect in jurisdiction, which, if not raised with particularity, is subject to the waiver provisions of Court of Claims Act § 11(c) (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 ; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 ; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]; Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
Section 11 of the Court of Claims Act constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State and, thus, must be strictly construed (Buckles v State of New York, 221 NY 418 ; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], appeal denied 64 NY2d 607 ). The Court cannot waive a defect in jurisdiction that has been timely raised (Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). Defendant timely and properly raised, with particularity, in its Answer, dated March 20, 2015, as its Second Affirmative Defense, that the Claim was served by ordinary mail, and not served personally or by certified mail, return receipt requested, as required by Court of Claims Act § 11(a). Therefore, the Court concludes that Defendant established that the Claim was improperly served upon it.
Based upon the foregoing, Defendant's Motion is granted and the Claim is hereby dismissed for failure to properly serve it upon the Attorney General as required by Court of Claims Act § 11(a)(i). The trial scheduled for November 14, 2019 is no longer necessary.
September 11, 2019
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Defendant's Motion for dismissal:
Notice of Motion, Affirmation, and Exhibits attached 1
Papers filed: Claim, Answer