|Claimant short name:||WALKER|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended sua sponte to reflect the only properly named defendant.|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||No Appearance|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Michael T. Krenrich, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 6, 2020|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim on the ground it was not served in the manner required by Court of Claims Act § 11.
On August 10, 2018 claimant, a pro se inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), filed a claim asserting a cause of action for wrongful confinement alleging the Department of Corrections and Community Supervision (DOCCS) failed to release him from prison on April 12, 2018, the date he completed serving a twelve-month penalty period imposed for a parole violation.
Defendant contends in support of its motion that the claim was not served by personal delivery or certified mail, return receipt requested, as required by Court of Claims Act § 11 (a) (i).
Court of Claims Act § 11 (a) (i) requires that the claim be filed with the Clerk of the Court and that "a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general . . .". Inasmuch as the filing and service requirements of Court of Claims Act § 11 are jurisdictional in nature, they must be strictly construed (Lurie v State of New York, 73 AD2d 1006, 1007 [3d Dept 1980], affd 52 NY2d 849 ; see also Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ). Absent waiver of the defense of improper service of the claim (Court of Claims Act § 11 [c]), service of the claim by ordinary mail or a method not in strict compliance with § 11 (a) (i) is insufficient to acquire jurisdiction over the defendant (Costello v State of New York, 164 AD3d 1420 [2d Dept 2018]; Encarnacion v State of New York, 133 AD3d 1049 [3d Dept 2015], lv denied 26 NY3d 919 ; Brown v State of New York, 114 AD3d 632 [2d Dept 2014]; Fulton v State of New York, 35 AD3d 977 [3d Dept 2006], lv denied 8 NY3d 809 ; Govan v State of New York, 301 AD2d 757 [3d Dept2003], lv denied 99NY2d 510 ).
Defendant established through the submission of a copy of the envelope in which the claim was mailed (defendant's Exhibit B) that the claim was not served by certified mail, return receipt requested, as required by Court of Claims Act § 11 (a) (i). The envelope contains no indicia of a certified mailing and the postage utilized to mail the claim (.89 cents) is plainly inadequate to accomplish a certified mailing requiring a return receipt. Inasmuch as the defendant preserved its objection to the manner of service by raising it as its first affirmative defense in its answer, the claim must be dismissed.Accordingly, the defendant's motion is granted, and the claim is dismissed.
May 6, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims