|Claimant short name:||CASTILLO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||No Appearance|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Jeane L. Strickland Smith, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 30, 2020|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for nine days of wrongful keeplock confinement in September 2019.(1) Defendant now makes this pre-answer motion to dismiss the claim on the ground that the Court lacks jurisdiction over the claim because it was served by ordinary mail. Claimant has not responded to the motion.
Court of Claims Act § 11 (a) (i) requires that if a claim is served upon the Attorney General by mail, it must be accomplished by certified mail, return receipt requested (CMRRR). Service of the claim by ordinary mail is insufficient to acquire personal jurisdiction over the defendant (see Govan v State of New York, 301 AD2d 757, 758 [3d Dept 2003], lv denied 99 NY2d 510 ), and the failure to effect service by CMRRR is a jurisdictional defect that requires dismissal of the claim (see Turley v State of New York, 279 AD2d 819, 819 [3d Dept 2001], lv denied 96 NY2d 708 , rearg denied 96 NY2d 855 ; Philippe v State of New York, 248 AD2d 827, 827 [3d Dept 1998]; Estrella v State of New York, UID No. 2008-018-634 [Ct Cl, Fitzpatrick, J., Sept. 3, 2008]).
In support of its motion to dismiss, defendant has shown that the claim was served on the Attorney General on October 18, 2019 not by CMRRR, but by regular first class mail (see Strickland Smith Affirmation, ¶ 3, Exhibit A). The envelope in which the claim was mailed to the Attorney General's Office bears merely a regular first class mail stamp, with no indicia that it was served by CMRRR (see id., Exhibit A). Neither the claim that was filed with the Court nor the claim that was served on the Attorney General was accompanied by an affidavit of service indicating, among other things, the manner of service (see Claim No. 133798; Strickland Smith Affirmation, Exhibit A) and, as noted above, claimant has not responded to the motion and thus has failed to controvert defendant's showing that the claim was served by ordinary mail. Thus, the claim must be dismissed for lack of jurisdiction due to claimant's failure to serve the claim on the Attorney General by CMRRR.
Accordingly, it is
ORDERED, that defendant's motion number M-94935 is GRANTED, and claim number 133798 is hereby DISMISSED.
January 30, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 133798, filed October 15, 2019;
2. Notice of Motion, dated November 19, 2019;
3. Affirmation of Jeane L. Strickland Smith, AAG, in Support of Motion to Dismiss, with Exhibit A;
4. Affidavit of Service of Laura Goosby, sworn to November 19, 2019.
1. Claimant is currently incarcerated at Green Haven Correctional Facility, but the claim does not allege a place of accrual.