Motion to dismiss the Claim granted; claim was served by regular mail and, additionally, Claimant failed to notify the Clerk in writing of any changes in his post office address within 10 days thereof as is required by the Uniform Rules of the Court of Claims (22 NYCRR) § 206.6 (f).
|Claimant short name:||WILSON|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CATHERINE E. LEAHY-SCOTT|
|Claimant's attorney:||Hasson Wilson, Pro Se (no appearance)|
|Defendant's attorney:||Letitia James, New York State Attorney General
By: Thomas Trace, Associate Attorney
|Third-party defendant's attorney:|
|Signature date:||October 8, 2020|
|See also (multicaptioned case)|
Pro se Claimant Hasson Wilson filed this Claim on November 16, 2018 alleging he was assaulted by an unknown inmate on October 3, 2018, while incarcerated at Marcy Correctional Facility. Defendant moves to dismiss the Claim pursuant to CPLR 3211 (a) (2) and (8) on the grounds that the Court lacks both personal jurisdiction and subject matter jurisdiction.(1) Specifically, Defendant contends that the Court lacks both personal jurisdiction over it and subject matter jurisdiction over the Claim because Claimant improperly served the Claim upon the Attorney General's Office by regular mail as opposed to certified mail, return receipt requested as mandated by Court of Claims Act § 11 (a) (i). This jurisdictional objection was raised with particularity in Defendant's Verified Answer and is preserved (see Court of Claims Act § 11 [c] [i]; Affirmation of Thomas Trace, Esq., Associate Attorney, Ex C ¶ 13 [Tenth Affirmative Defense]). Claimant has not submitted any papers in opposition to the motion.
Court of Claims Act § 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy 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." "A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Court of Claims Act § 10 , [3-b]). "[A]s suits against [the State] are permitted only by virtue of its waiver of sovereign immunity and are in derogation of the common law, the failure to strictly comply with the filing or service provisions of the Court of Claims Act divests the court of subject matter jurisdiction and compels dismissal of the claim" (Caci v State of New York, 107 AD3d 1121, 1122 [3d Dept 2013] [internal quotation marks and citations omitted]; see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 ).
Here, the Claim accrued on October 3, 2018, the date Claimant was allegedly assaulted (see Affirmation of Thomas Trace, Esq., Associate Attorney Ex A [Claim] ¶ 4). Consequently, Claimant was required to file and serve his Claim or serve a Notice of Intention to file such a Claim on or before January 2, 2019 (see Court of Claims Act §§ 10 , [3-b]; 11 [a] [i]).(2)
As an initial matter, it appears that a Notice of Intention was never served upon the Attorney General as Claimant does not allege that a Notice of Intention was served (see Claim ¶ 5) and the Attorney General has no record of receiving a Notice of Intention for this Claim. Because a Notice of Intention was not served by Claimant upon the Attorney General, Claimant was required to file and serve his Claim on or before January 2, 2019.
Although Claimant served his Claim on the Attorney General on November 19, 2018, he did so by regular mail as opposed to certified mail, return receipt requested. In support of its motion, Defendant includes a copy of the envelope in which the Claim was served upon the Attorney General's Office (see Affirmation of Thomas Trace, Esq., Associate Attorney, Ex B). This envelope shows postage of $0.47, an amount insufficient for service by certified mail, return receipt requested (see Smith v State of New York, UID No. 2005-009-061 [Ct Cl, Midey, Jr., J., Dec. 5, 2005]). Additionally, the envelope used to serve the Claim bears none of the markings or label of proper service by certified mail, return receipt requested. Claimant has failed to present any proof to rebut Defendant's contention. Attached to the Claim filed with the Chief Clerk of the Court is an Affidavit of Service, sworn to on November 5, 2018 which avers that the Claim was mailed to the Attorney General by certified mail, return receipt requested on November 12, 2018 (see Aff of Service). Claimant's assertion that he mailed the Claim seven days after he signed the affidavit of service renders the affidavit untrustworthy and lacking probative value on the issue of service (see Rivera v State of New York, UID No. 2019-040-108 [Ct Cl, McCarthy, J., Nov. 8, 2019]; Dukes v State of New York, UID No. 2017-038-513 [Ct Cl, DeBow, J., Feb. 10, 2017]).
In sum, because the Claim was served upon Defendant by regular mail, this Court lacks personal jurisdiction over Defendant and subject matter jurisdiction over the Claim (see Spaight v State of New York, 91 AD3d 995, 995 [3d Dept 2012] ["(a)s the claim here was sent by ordinary mail, the Court of Claims was deprived of subject matter jurisdiction and, therefore, the claim was properly dismissed"]; Turley v State of New York, 279 AD2d 819, 819 [3d Dept 2001] ["the use of ordinary mail to serve the claim upon the Attorney-General is insufficient to acquire jurisdiction over the State" (internal quotation marks and citation omitted)], lv denied 96 NY2d 708 , rearg denied 96 NY2d 855 ).
Accordingly, it is hereby
ORDERED Motion No. M-95468 is GRANTED and Claim No. 132281 is DISMISSED in its entirety.
October 8, 2020
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims
The Court considered the following in deciding the motion:
(1) Notice of Motion to Dismiss, dated March 12, 2020.
(2) Affirmation of Thomas Trace, Esq., Associate Attorney, dated March 12, 2020, in Support of Motion to Dismiss, with attachments.
(3) Claim No. 132281, filed on November 16, 2018.
(4) Court's Letter, dated June 12, 2020.
(5) Court's Letter, dated August 7, 2020.
1 By Executive Order 202 et seq., Governor Andrew M. Cuomo extended the tolling of "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state." By letter dated June 12, 2020, this Court requested the parties' consent to a new return date of August 19, 2020. The letter was sent to Claimant at Sing Sing Correctional Facility, his last known address, and included his Department of Corrections and Community Supervision Identification Number (DIN). Associate Attorney General Thomas Trace consented to the August 19, 2020 return date. On July 20, 2020, the Court's letter to Claimant was returned as undeliverable with the following notations: "NO LONGER HERE" and "Released 5/12/20." By letter dated August 7, 2020, the Court sent an additional letter to the parties requesting their consent to a return date of October 7, 2020. Associate Attorney General Thomas Trace consented to the October 7, 2020 return date. On August 25, 2020, the Court's letter to Claimant was returned as undeliverable with the following notation: "NO LONGER HERE PAROLED/RELEASED." Thus, it appears that Claimant has failed to notify the Clerk in writing of any changes in his post office address within 10 days thereof as is required by the Uniform Rules of the Court of Claims (22 NYCRR) § 206.6 (f) (see Alexander v State of New York, UID No. 2014-040-047 [Ct Cl, McCarthy, J., Sept. 19, 2014] [dismissing Claim for failure to serve the New York State Attorney General and failure to notify the Clerk of change of address]).
2 The ninetieth day after accrual of the Claim was Tuesday, January 1, 2019, a public holiday (see General Construction Law § 24). Thus, Claimant had until Wednesday, January 2, 2019 to serve a Notice of Intention or a Claim (see id.§ 25-a ).