|Claimant short name:||HENRY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||RICHARD E. SISE|
|Claimant's attorney:||CHRISTOPHER HENRY, PRO SE|
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
BY: Lawrence E. Kozar, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 15, 2020|
|See also (multicaptioned case)|
The following papers were read on Defendant's motion to dismiss pursuant to CPLR 3211:
1. Notice of Motion filed August 10, 2020;
2. Affirmation of Lawrence E. Kozar affirmed July 3, 2020 with Exhibit A annexed;
3. Unsworn statement of Christopher Henry dated September 4, 2020 with Exhibits annexed;
4. Unsworn statement of Christopher Henry dated September 5, 2020.
Filed papers: Claim
Defendant has moved to dismiss the claim on the ground that it was served by regular mail rather than by personal delivery or certified mail return-receipt-requested as required by Court of Claims Act § 11 (a). The failure to serve a claim in a manner required by the statute deprives the court of jurisdiction (Spaight v State of New York, 91 AD3d 995 [3d Dept 2012]).
In support of the application defendant has submitted an affirmation by its attorney in which he asserts that the claim was received by the Attorney General's office on April 15, 2020 by regular U.S. mail. The attorney, however, does not claim to have personal knowledge of the manner in which the claim was received. Instead, he has provided a copy of the envelope in which the claim was received and contends that, because postage stamps are affixed to the envelope, the claim was sent via ordinary mail. The envelope, however, shows only that it is addressed to the Attorney General at a New York City address and includes a return address, three postage stamps and a stamp showing it was received in the New York City Claims Bureau on April 15, 2020. The envelope lacks any marking showing that it was processed through the United States Postal Service or any other mailing service. Inasmuch as the attorney does not profess personal knowledge of the manner in which the claim was received by the Attorney General's office, and the envelope does not show that it was sent by regular mail, the motion should be denied.
Accordingly, it is
ORDERED, that the motion is denied.
October 15, 2020
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims