New York State Court of Claims

New York State Court of Claims
PEREZ v. THE STATE OF NEW YORK, # 2020-038-579, Claim No. 134954, Motion No. M-95916

Synopsis

Defendant's motion to dismiss for lack of jurisdiction granted. Claim was improperly served on the Attorney General by regular, first-class mail.

Case information

UID: 2020-038-579
Claimant(s): LUIS PEREZ #15-A-4410
Claimant short name: PEREZ
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 134954
Motion number(s): M-95916
Cross-motion number(s):
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: December 3, 2020
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for injuries allegedly sustained as the result of an inmate-on-inmate attack at Green Haven Correctional Facility on January 15, 2020. Defendant 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 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). 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 [1989]; Martinez v State of New York, 282 AD2d 580, 580 [2d Dept 2001], lv denied 96 NY2d 720 [2001]). 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 [2003]), 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 [2001], rearg denied 96 NY2d 855 [2001]; 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 regular, first-class mail on June 22, 2020 (see Strickland Smith Affirmation, 4, Exhibit B). Although claimant served a notice of intention to file a claim on the Attorney General on March 5, 2020 via CMRRR (see Strickland Smith Affirmation, 3, Exhibit A), the envelope in which the claim itself was thereafter served on the Attorney General bears postage indicating that it was served by regular first-class mail, with no indicia that it was served by CMRRR (see id., Exhibit B). As noted above, claimant has not responded to the motion, and thus has not controverted defendant's showing that he failed to serve the claim on the Attorney General by CMRRR. Thus, the claim is jurisdictionally defective and must be dismissed.

Accordingly, it is

ORDERED, that defendant's motion number M-95916 is GRANTED, and claim number 134954 is hereby DISMISSED.

December 3, 2020

Saratoga Springs, New York

W. BROOKS DeBOW

Judge of the Court of Claims

Papers considered:

1. Claim number 134954, filed June 22, 2020;

2. Notice of Motion, dated September 9, 2020;

3. Affirmation of Jeane L. Strickland Smith, AAG, in Support of Motion to Dismiss, dated September 9, 2020, with Exhibits A-B;

4. Affidavit of Service of Dawn McNamara, sworn to September 9, 2020.