Defendant's motion to dismiss based on failure to serve claim.
|Claimant short name:||BRIDGES|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||Edward Bridges, Pro Se|
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Elizabeth Gavin, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 12, 2020|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion with annexed Exhibits 1- 2 and the filed Claim.
Defendant, the State of New York, has brought this pre-answer motion to dismiss the claim pursuant to CPLR 3211 (a) (2) and (8) due to claimant's failure to comply with the service requirements of Court of Claims Act §§ 10 and 11. Claimant, Edward Bridges, pro se, has not responded to this motion.
On November 30, 2018 the Attorney General's Office was served with a notice of intention to file a claim by certified mail, return receipt requested, which contained allegations of wrongful confinement and retaliation. The alleged dates of accrual listed in the notice of intention are May 4, 2018 through August 21, 2018. A claim in this matter was served by regular mail on December 6, 2019.
Defendant argues that the Court lacks jurisdiction over the claim because claimant failed to serve the claim in accordance with Court of Claims Act section 11(a) by certified mail, return receipt requested or personal service. In this case, defendant has attached a copy of the envelope in which the claim was received with no evidence of certified mail. The affidavit of service attached to the claim and filed with the Clerk of the Court only states that the claim was mailed on November 22, 2019, it does not indicate the form of mailing.
Court of Claims Act § 11 (a) provides that a copy of the claim ". . . 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 . . . ." The filing and service requirements contained in the Court of Claims Act § 11 are jurisdictional in nature and therefore must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721 ). In this case, the requirement that defendant be served in accordance with Court of Claims Act § 11 was not met as the claims were not served upon the Office of the Attorney General by certified mail, return receipt requested and as such the Court is deprived of jurisdiction (see Spraight v State of New York, 91 AD3d 995 [3d Dept 2012]).
Additionally, to the extent that the claim can be read to assert a cause or causes of action based upon defendant's alleged retaliation against claimant, the proper venues for so-called retaliation claims are the inmate grievance procedure and Article 78 proceedings, not the Court of Claims (Zulu v State of New York, Ct Cl, May 21, 2001 [Claim Nos. 96973 and 96974, Motion Nos. M-63183 and M-63184], Patti, J., UID # 2001-013-006).
Therefore, for the foregoing reasons, defendant's motion is granted and the claim is hereby dismissed.
May 12, 2020
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims