Motion seeking dismissal for improper service was granted and claim was dismissed. Claimant's cross motion to transfer the claim pursuant to CPLR 325 (b) was denied.
|Claimant(s):||WILLIAM HARRIS BROOKS|
|Claimant short name:||BROOKS|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||William Harris Brooks, Pro Se|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Shadi Masri, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 6, 2021|
|See also (multicaptioned case)|
Defendant moves for dismissal pursuant to CPLR 3211 (a) (2) and (8) on the ground the claim was not served in the manner required by Court of Claims Act § 11 (a) (i). Claimant, proceeding pro se, cross-moves to transfer the claim to another court pursuant to CPLR 325 (b).
Claimant, an incarcerated individual, alleges he was subjected to unlawful confinement and deprived of certain privileges following his transfer to Great Meadow Correctional Facility for a video trial in November 2019.
Defendant contends in support of its motion that the claim was improperly served by ordinary First Class mail rather than one of the methods prescribed by Court of Claims Act § 11 (a) (i) .
Court of Claims Act § 11 (a) (i) requires that a claim be filed with the Clerk of the Court and that "a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general . . . ." Inasmuch as the filing and service requirements of Court of Claims Act § 11 are jurisdictional in nature, they must be strictly construed (Lurie v State of New York, 73 AD2d 1006, 1007 [3d Dept 1980], affd 52 NY2d 849 ; see also Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ). Absent waiver of the defense of improper service of the claim (Court of Claims Act § 11 [c]), service of the claim by ordinary mail or a method not in strict compliance with § 11 (a) (i) is insufficient to acquire jurisdiction over the defendant (Wright v State of New York, 181 AD3d 1332 [4th Dept 2020], lv denied 185 AD3d 1482 , lv denied 187 AD3d 1605 , lv denied 35 NY3d 919 , rearg denied 36 NY3d 1048 ; Costello v State of New York, 164 AD3d 1420 [2d Dept 2018]; Encarnacion v State of New York, 133 AD3d 1049 [3d Dept 2015], lv denied 26 NY3d 919 ; Brown v State of New York, 114 AD3d 632 [2d Dept 2014]; Fulton v State of New York, 35 AD3d 977 [3d Dept 2006], lv denied 8 NY3d 809 ). Defendant established through submission of a copy of the envelope in which the claim was mailed, together with the claimant's affidavit of service, that the claim was not served by certified mail, return receipt requested, as required by Court of Claims Act § 11 (a) (i) (see defendant's Exhibit A). Notably, claimant's affidavit regarding service of the claim, attached to the filed claim and included as a part of defendant's Exhibit A, does not specify the manner in which the claim was served.
In opposition to the motion and in support of his cross motion, claimant admits the claim was served by regular First Class mail, but requests this Court transfer the Claim to another Court pursuant to CPLR 325 (b). CPLR 325 (b) permits a Court that has jurisdiction over a matter to "remove the action to itself upon motion" when the Court in which the action is pending does not have jurisdiction. A transfer is not appropriate here, first because § 325 (b) does not authorize this Court to order a transfer and, second, because actions against the State, with limited exceptions, must be brought in the Court of Claims (N.Y. Const., Art. VI, § 9; Court of Claims Act §§ 8, 9 ). As a result, the Court of Claims is not one of the Courts empowered by the Constitution to transfer actions (see N.Y. Const., Art. VI, § 19; Cocchi v State of New York, 52 Misc 3d 561 [Ct Cl, 2016]; Selby v State of New York, 15 Misc3d 1144 [A] [Ct Cl, 2007]; Maric Mechanical v State of New York, 145 Misc2d 287 [Ct Cl, 1989]). Claimant's cross motion must therefore be denied.Based on the foregoing, defendant's motion is granted and the claim is dismissed. Claimant's cross motion is denied.
December 6, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. Notice of motion dated September 28, 2021;
2. Affirmation in support dated September 28, 2021, with Exhibits A and B.
1. Notice of Cross-Motion dated October 21, 2021;
2. Affidavit in support sworn to October 21, 2021;
3. Affirmation in Opposition dated November 4, 2021.