Defendant's pre-answer motion to dismiss the claim granted. Claimant failed to comply with the service requirements of Court of Claims Act §11 (a) (i).
|Claimant short name:||POULOS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||ARANDA LAW FIRM, PLLC
By: Sofia Aranda, Esq.
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Christina Calabrese, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 8, 2020|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for an alleged wrongful conviction and imprisonment pursuant to Court of Claims Act § 8-b. Defendant now makes this pre-answer motion to dismiss the claim for lack of jurisdiction on the ground that it was improperly served by regular mail. Claimant opposes 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). It is well established that the service requirements of the Court of Claims Act must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 ; Martinez v State of New York, 282 AD2d 580, 580 [2d Dept 2001], lv denied 96 NY2d 720 ). Service of the claim by ordinary mail is insufficient to acquire personal jurisdiction over the defendant (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]).
In support of its motion to dismiss, defendant has demonstrated that the claim was served upon the Attorney General not by CMRRR, but by United States Postal Service Priority Mail Express on January 29, 2020 (see Calabrese Affirmation, ¶¶ 4-9; Exhibits A-B). The envelope in which the claim was served on the Attorney General bears postage indicating that it was served by "Priority Mail Express," with no indicia that it was served by CMRRR. In opposition to the motion, claimant concedes that the claim was served by Priority Mail Express, but argues that service by such means "essentially provides the same service whereby proof of delivery is provided to the sender" and did not prejudice defendant inasmuch as "[d]efendant received timely notice of the pendency of the action and in a manner that confirmed delivery by signature" (Aranda Affirmation in Opposition, ¶¶ 6-7). Claimant argues that the "only difference" between service by CMRRR and service by Priority Mail Express is "the green postcard" that serves as proof of delivery by CMRRR, and that "[t]he absence of the green postcard is a technical defect that should be disregarded" pursuant to CPLR 2001, which permits the Court to overlook technical irregularities in the absence of prejudice to a substantial right (id. at ¶ 8).
Contrary to claimant's argument, "[a]lternative mailings which do not equate to certified mail, return receipt requested, are inadequate and do not comply with Court of Claims Act § 11 (a)" (Hodge v State of New York, 213 AD2d 766, 767 [3d Dept 1995]) which, as noted above, is not a mere technical requirement, but a jurisdictional prerequisite that must be strictly construed. Because claimant's failure to comply with the service requirement set forth in Court of Claims Act § 11 (a) (i) deprives the Court of jurisdiction, the claim must be dismissed (see Miranda v State of New York, 113 AD3d 943, 943 [3d Dept 2014] ["claimant's substituted manner of service - priority mail - did not stricly comply with" Court of Claims Act § 11 (a) and thus divested the Court of jurisdiction]; Ifill v State of New York, UID No. 2019-032-071 [Ct Cl, Hard, J., Nov. 26, 2019] ["service of the claim by priority mail is insufficient to confer jurisdiction with this Court"]; Harris v State of New York, UID No. 2014-038-558 [Ct Cl, DeBow, J., Dec. 17, 2014] [claim served by priority mail dismissed for lack of jurisdiction]).
Accordingly, it is
ORDERED, that defendant's motion number M-95320 is GRANTED, and claim number 134372 is hereby DISMISSED.
September 8, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim number 134372, filed January 28, 2020;
2. Pre-Answer Notice of Motion, dated February 12, 2020;
3. Affirmation of Christina Calabrese, AAG, in Support of Pre-Answer Motion to Dismiss, dated December 20, 2017, with Exhibits A-B;
4. Affirmation in Opposition to Pre-Answer Motion to Dismiss, dated June 17, 2020, with Exhibits 1 & 2.