The State's motion to dismiss the claim for lack of jurisdiction is granted and the claim is dismissed. The pro se claimant served the Attorney General with a copy of the claim by regular mail and not by certified mail, return receipt requested. In addition, the claim failed to set forth a date when the alleged claim accrued.
|Claimant(s):||MARK E. BRADY, JR.|
|Claimant short name:||BRADY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||MARK E. BRADY, JR., Pro Se|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Wendy E. Morcio, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 6, 2019|
|See also (multicaptioned case)|
Mark E. Brady, Jr., a former inmate proceeding pro se, alleges in claim no. 128170 that he smashed the tip of his right middle finger as a result of an unsafe workout area in the weight pit at Gowanda Correctional Facility (Gowanda). Defendant moves for summary judgment to dismiss the claim for lack of jurisdiction. Claimant did not appear or otherwise oppose defendant's motion.
Court of Claims Act §§ 10 (3) and 11(a) (i), provide that a claim for damages allegedly caused by the negligence of the State of New York must be filed and a copy served upon the Attorney General personally or by certified mail, return receipt requested, within ninety (90) days of accrual of the claim, unless the Claimant shall within the same ninety (90) day period serve upon the Attorney General a notice of intention to file a claim, in which event the claim shall be filed and served within two years after accrual of the negligence claim. The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 ). The failure to properly serve a copy of the claim upon the Attorney General personally or by certified mail, return receipt requested, divests the Court of jurisdiction requiring dismissal of the claim (Dreger v New York State Thruway Auth., 81 NY2d 721 ). Defendant alleges that claim no. 128170 was improperly served by regular mail.
On June 13, 2016, claimant served upon the Attorney General's Office a copy of the claim (Defendant's Exhibit A). Attached to the claim as part of Exhibit A is an affidavit of service. Nothing in the affidavit of service indicates that the claim was to be served by certified mail, return receipt requested. Also attached as part of Exhibit A is a copy of the envelope in which the claim was served. The envelope shows postage of $0.46, an amount insufficient for service by certified mail, return receipt requested. In addition, there is no certified mail or return receipt sticker on the envelope to indicate proper service by certified mail, return receipt requested. Regular mail is not an authorized method of service (Miranda v State of New York, 113 AD3d 943 [3d Dept 2014]). Defendant raised the improper service of the claim by regular mail as an affirmative defense in its answer as required by Court of Claims Act § 11 (c ) (Defendant's Exhibit B). As the claim was improperly served by regular mail, this Court does not have jurisdiction and the claim must be dismissed (Fulton v State of New York, 35 AD3d 977 [3d Dept 2006], lv denied 8 NY3d 809 ).
Defendant further argues that the claim must be dismissed as being jurisdictionally defective for failing to comply with the pleading requirements of Court of Claims Act § 11 (b). This affirmative defense was also raised by defendant with particularity in its answer. Section 11 (b) requires that the claim "shall state the time when . . . such claim arose." Nothing in claim no. 128170 sets forth the date upon which claimant injured his finger and there is no way to determine the date when the incident occurred from the allegations contained in the claim. The failure to strictly comply with the pleading requirements of Court of Claims Act § 11 (b) is a fatal jurisdictional defect requiring dismissal of the claim (Kolnacki v State of New York, 8 NY3d 277 , rearg denied 8 NY3d 994 ; Lepkowski v State of New York, 1 NY3d 201 ).
Accordingly, defendant's motion no. M-94208 for summary judgment is granted and claim no. 128170 is dismissed as being jurisdictionally defective.
September 6, 2019
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Notice of motion and affirmation of Assistant Attorney General Wendy E. Morcio dated June 20, 2019, with annexed Exhibits A-B.