The State motion for summary judgment for lack of subject matter jurisdiction is granted. Pro se inmate served notice of intention and claim by regular mail. The claim is dismissed.
|Claimant(s):||MATTHEW J. COLON|
|Claimant short name:||COLON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||MATTHEW J. COLON, Pro Se|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Carlton K. Brownell, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 22, 2020|
|See also (multicaptioned case)|
Claimant Matthew J. Colon, a former inmate proceeding pro-se, alleges in claim no. 122116 that the defendant State of New York failed to provide adequate medical care from December 1, 2012 to December 3, 2012, while he was incarcerated at Lakeview Shock Correctional Facility (Lakeview). Defendant moves for summary judgment, alleging a lack of jurisdiction. Claimant failed to appear or otherwise oppose defendant's motion.(1)
In order to commence an action against the State of New York in the Court of Claims, a claim must be filed and a copy served upon the Attorney General personally or by certified mail, return receipt requested, within ninety (90) days of accrual of the claim, unless within the same time period, a notice of intention to file a claim is served personally or by certified mail, return receipt requested, in which event the claim must be filed and served within two (2) years of accrual of a negligence claim (Court of Claims Act §§ 10  and [a][I]). Both a notice of intention and a claim must be served personally or by certified mail, return receipt requested. Service by certified mail, return receipt requested, is not complete until the notice of intention or claim is received in the office of the Attorney General (Court of Claims Act § 11 [a][I]).
The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 ). The failure to comply with service requirements of the Court of Claims Act deprives the Court of jurisdiction, requiring dismissal of the claim (Ivy v State of New York, 27 AD3d 1190 (4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], app denied 64 NY2d 607 ). Defendant argues that the Court lack jurisdiction as the notice of intention and the claim were served by regular mail. This defense was raised with particularity in defendnat's answer (Defendant's Exhibit C).
On December 12, 2012, claimant served a notice of intention to file a claim, together with a copy of the claim, upon the Attorney General's Office (Defendant's Exhibit A). A copy of the envelope in which the notice of intention and the claim were served is attached to the supporting affirmation of Assistant Attorney General Carlton K. Brownell, III as Exhibit B. The envelope shows none of the indicia or remains of a certified mail sticker and the amount of postage is insifficient for service by certified mail, return receipt requested.
While claimant's affidavit of service indicates that he intended to serve the claim by certified mailed, return receipt requested, he failed to insert in his affidavit of service a certified mail no., although he included a blank space to do so. In addition, claimant has failed to come forward with a copy of the green return receipt card or a copy of a disbursement request form indicating that he requested the necessary postage to serve the claim by certified mail, return receipt requested, or any evidence of appropriate service.
The Court concludes that the notice of intention and the claim were served upon the Attorney General's Office by regular mail. As regular mail is not one of the authorized methods of service set forth in the Court of Claims Act, this Court is deprived of subject matter jurisdiction, requiring dismissal of the claim. (Tuszynski v State of New York, 156 AD3d 1472 [4th Dept 2017]; Zoeckler v State of New York, 109 AD3d 1133 4th Dept 2013)].
Accordingly, defendant's motion no. M-95382 is granted and claim no. 122116 is dismissed.
June 22, 2020
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Notice of motion and affirmation of Assistant Attorney General Carlton K. Brownell, III, dated March 3, 2020, with annexed Exhibits A-D.
1. Claim no. 122116 was transferred to my inmate trial calendar in February 2020. By letter dated February 28, 2020, this Court wrote to claimant at Lakeview to advise him of an April, 2020 trial date. This letter was returned to Chambers marked "Return to Sender", "Not Deliverable as Addressed", and "Unable to Forward". Claimant is apparently no longer incarcerated and has failed to advise the Clerk of the Court of any change of address as he is required to do by the Uniform Rules of the Court of Claims § 206.6 [f] (see Assistant Attorney General Brownell's supporting affirmation and Defendant's Exhibit D).