Claim dismissed as Claimant served Claim by certified mail, not certified mail, return receipt requested, as required by CCA § 11.
|Claimant short name:||BENNETT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Anthony Bennett, Pro Se|
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Albert D. DiGiacomo, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||August 16, 2021|
|See also (multicaptioned case)|
For the reasons set forth below, Defendant's Motion to dismiss the Claim based upon lack of subject matter and personal jurisdiction pursuant to CPLR 3211(a)(2) and (8) for failure to comply with the service requirements of Court of Claims Act § 11(a) is granted. The remainder of the Motion is denied as Moot.
This pro se Claim, which was filed in the office of the Clerk of the Court on August 27, 2020, alleges that, on September 18, 2019, Defendant breached a contract for employment with Claimant, took away his job and associated wages, and denied him due process.
Defendant seeks dismissal of the Claim on the basis that Claimant failed to serve the Claim upon Defendant in the manner required by Court of Claims Act § 11(a), by serving it by certified mail but not by certified mail, return receipt requested (Affirmation of Albert D. DiGiacomo, Esq., Assistant Attorney General [hereinafter, "DiGiacomo Affirmation"], ¶ 4).
As pertinent to the instant matter, Court of Claims Act § 11(a)(i) provides that a claim shall be served personally or by certified mail, return receipt requested, upon the Attorney General within the time period provided in Court of Claims Act §§ 10(3) and 10(4).
In his affirmation submitted in support of the Motion, Defense counsel asserts that, on August 24, 2020, Claimant served the Notice of Intention to File a Claim and the Claim upon the Attorney General by certified mail, however, the envelope did not contain a green return receipt and bore a stamped legend a "[R]eturn [R]eceipt was not attached" (DiGiacomo Affirmation, ¶ 4, and Ex. A attached thereto). In reviewing Exhibit A, which includes a photocopy of the envelope in which the Notice of Intention and Claim purportedly were mailed, the Court notes that the postage amounted to $7.80 and that there is a certified mail sticker affixed to the front of the envelope, however, there is no return receipt sticker affixed to either the front or the back of the envelope. In addition, the back of the envelope bears a stamp that reads: "A Return Receipt was NOT Attached." In addition, Claimant wrote by hand across the top middle portion of the back of the envelope "all Rights Reserved 'By': Anthony Bennett, Agent." Claimant, in opposition to the Motion, asserts that he paid for "certified service" and that someone at the facility deliberately removed the green card return receipt (Affidavit of Anthony Bennett, ¶ 5). However, Claimant failed to submit any evidence that the fee he paid was for certified mail, return receipt service (i.e., by submitting a disbursement form or a USPS receipt).
The failure to properly serve the Attorney General gives rise to a defect in jurisdiction, which, if not raised with particularity, is subject to the waiver provisions of Court of Claims Act § 11(c) (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 ; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 ; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]; Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
Section 11 of the Court of Claims Act constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State and, thus, must be strictly construed (Buckles v State of New York, 221 NY 418 ; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], appeal denied 64 NY2d 607 ). The Court cannot waive a defect in jurisdiction that has been timely raised (Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). Defendant timely and properly raised, with particularity, in its Answer, dated October 27, 2020, as its Seventh Affirmative Defense, that the Notice of Intention was served by certified mail, and not served by certified mail, return receipt requested, as required by Court of Claims Act § 11(a). Defendant also asserted, as its Fifteenth Affirmative Defense, that the Claim was served by certified mail, and not served by certified mail, return receipt requested, as required by Court of Claims Act § 11(a). Therefore, the Court concludes that Defendant established that the Notice of Intention and the Claim were improperly served upon it.
Based upon the foregoing, Defendant's Motion is granted and the Claim is hereby dismissed for failure to properly serve the Notice of Intention and the Claim upon the Attorney General as required by Court of Claims Act § 11(a)(i). The remainder of the Motion is denied as moot.
August 16, 2021
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Defendant's Motion for dismissal:
Notice of Motion, Affirmation in Support,
& Exhibits Attached 1
Claimant's Affidavit 2
Filed Papers: Claim, Answer