Defendant's motion to dismiss the claim is granted. Claim served by regular mail, not certified mail, return receipt requested.
|Claimant short name:||FULTON|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Jeremy Fulton, Pro Se|
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Douglas R. Kemp, AAG
|Third-party defendant's attorney:|
|Signature date:||August 3, 2020|
|See also (multicaptioned case)|
Claimant, an inmate proceeding pro se, filed the instant claim with the Clerk of the Court on November 15, 2019. The claim alleges a cause of action for negligence, specifically that defendant misplaced a motion filed by claimant on November 29, 2010 and that as a result, claimant was unable to file an appeal.(1) Defendant now moves to dismiss the claim on the ground that the claim was improperly served by regular mail and not by certified mail, return receipt requested as required by Court of Claims Act § 11 (b). Claimant cross-moves for an extension of time to serve the claim.
Court of Claims Act § 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." "[A]s suits against defendant are permitted only by virtue of its waiver of sovereign immunity and are in derogation of the common law, the failure to strictly comply with the filing or service provisions of the Court of Claims Act divests the court of subject matter jurisdiction and compels dismissal of the claim" (Caci v State of New York, 107 AD3d 1121, 1122 [3d Dept. 2013] [internal quotation marks and citations omitted]; see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 ; Rodriguez v State of New York, 307 AD2d 657, 657 [3d Dept. 2003]). Once challenged, the burden is upon the claimant to establish proper service by a preponderance of the credible evidence (see Caci v State of New York, 107 AD3d at 1124; Boudreau v Ivanov, 154 AD2d 638, 639 [2d Dept. 1989]; Aquila v Aquila, 129 AD2d 544, 545 [2d Dept. 1987]).
Here, defendant submits the envelope in which the claim was received by the Office of the Attorney General, which indicates that the claim was served by regular mail (Affirmation of Douglas R. Kemp, AAG, Exhibit B). In response, claimant admitted that he did not properly serve the claim (Affidavit of Claimant ¶ 8). As the claim was not properly served in accordance with Court of Claims Act § 11 (a) (i), the Court lacks jurisdiction over the claim and the claim must be dismissed.
Claimant cross-moves for an extension of time to properly serve the claim. Claimant asserts that a notice of intention to file a claim was served upon the Attorney General on November 8, 2019 (see Claimant's Affidavit, Attached Exhibit). However, the notice of intention to file a claim alleges an accrual date of November 29, 2010--the date that claimant's motion papers were allegedly lost by an unidentified court (see id.). "A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept. 2011]; see Court of Claims Act § 10 , [3-b]). Thus, because the notice of intention to file a claim was served nearly nine years past the accrual date of the claim, it did not extend the time for claimant to file and serve a claim. To the extent that claimant seeks an extension of time to serve the claim, the Court denies the request as claimant's failure to meet the service requirements of the Court of Claims Act deprives the Court of subject matter jurisdiction over the claim (Elderkin v State of New York, UID No. 2007-037-026 [Ct Cl, Moriarty, J., June 18, 2007]).
Based upon the foregoing, defendant's motion to dismiss the claim (M-95262) is GRANTED. Claimant's cross motion for an extension of time to serve the claim (CM-95306) is DENIED. Claim number 133981 is DISMISSED.
August 3, 2020
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Verified Claim, filed on November 15, 2019.
2. Notice of Motion to Dismiss, dated February 3, 2020; and Affirmation in Support of Motion to Dismiss, affirmed by Douglas R. Kemp, AAG on February 3, 2020, with Exhibits A through B annexed thereto.
3. Notice of Cross-Motion and Affidavit in Reply, dated February 7, 2020; and Cross Motion & Affidavit Reply In Opposition of a Motion to Dismiss, sworn to by claimant on February 11, 2020, with Exhibits annexed thereto.
1. Although claimant asserts that the claim alleges causes of action for "negligence and for [b]reach of [c]ontract[,]" the Court notes that the allegations contained in the claim state a cause of action for negligence only, as "a court . . . is not bound by a party's characterization of the nature of the cause of action, but must examine and determine the true gravamen of the cause of action" (Manuel v State of New York, UID No. 2018-038-561 [Ct Cl, DeBow, J., June 21, 2018], citing Western Elec. Co. v Brenner, 41 NY2d 291, 293 ; Gold v New York State Bus. Group, 255 AD2d 628, 630 n [3d Dept. 1998]; Marine Midland Bank v Jerry Hamam, Inc., 96 AD2d 1137, 1138 [4th Dept. 1983]).