New York State Court of Claims

New York State Court of Claims
GURVEY v. STATE OF NEW YORK, # 2020-015-064, Claim No. 134439, Motion No. M-95440

Synopsis

Defendant's dismissal motion based on the lack of a verified claim and improper service of the claim by regular mail was granted.

Case information

UID: 2020-015-064
Claimant(s): AMY R. GURVEY
Claimant short name: GURVEY
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 134439
Motion number(s): M-95440
Cross-motion number(s):
Judge: FRANCIS T. COLLINS
Claimant's attorney: Amy R. Gurvey, Pro Se
Defendant's attorney: Honorable Letitia James, Attorney General
By: Anthony Rotondi, Assistant Attorney General
Third-party defendant's attorney:
Signature date: August 3, 2020
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, proceeding pro se, seeks damages for patent infringement, civil rights violations, and misconduct by the First Department Grievance Committee. `Defendant moves for dismissal on the grounds, inter alia, that the claim is unverified and was not served in the manner required by Court of Claims Act 11.

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 [1981]; see also Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). 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 [2016]; 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 [2007]; Govan v State of New York, 301 AD2d 757 [3d Dept2003], lv denied 99 NY2d 510 [2003]).

Defendant established through submission of a copy of the envelope in which it was mailed (defendant's Exhibit A) that the claim was not served by certified mail, return receipt requested, as required by Court of Claims Act 11 (a) (i). In this regard, the envelope states clearly that it was sent by "USPS First-Class Mail". Inasmuch as the defendant preserved its objection to the manner of service by raising it in a pre-answer dismissal motion (Court of Claims Act 11 [c]), the claim must be dismissed.

In addition, the claim is unverified. Inasmuch as defendant preserved its objection to the unverified claim by notifying claimant of the defect and rejecting it on the same day it was received, defendant's pre-answer dismissal motion must be granted (see Gillard v State of New York, 28 Misc 3d 1139 [Ct Cl, 2010]).

Accordingly, defendant's motion is granted, and the claim is dismissed, without opposition.

August 3, 2020

Saratoga Springs, New York

FRANCIS T. COLLINS

Judge of the Court of Claims

Papers Considered:

  1. Notice of motion dated March 11, 2020;
  2. Affirmation in support dated March 11, 2020, with Exhibits A and B.