New York State Court of Claims

New York State Court of Claims
HERBERT v. STATE OF NEW YORK, # 2021-040-040, Claim No. 129950, Motion No. M-96784, Cross-Motion No. CM-96826

Synopsis

Pro se Claimant's Motion to compel discovery denied. State's Motion to dismiss for lack of jurisdiction granted because Claimant served the Claim by regular mail and not personally or by certified mail, return receipt requested, as required by CCA 11(a).

Case information

UID: 2021-040-040
Claimant(s): JEREMIAH F. HERBERT
Claimant short name: HERBERT
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 129950
Motion number(s): M-96784
Cross-motion number(s): CM-96826
Judge: CHRISTOPHER J. McCARTHY
Claimant's attorney: Jeremiah F. Herbert, Pro Se
Defendant's attorney: LETITIA JAMES
Attorney General of the State of New York
By: Thomas J. Reilly, Esq., AAG
Third-party defendant's attorney:
Signature date: August 25, 2021
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

For the reasons set forth below, Claimant's Motion to compel discovery (Motion No. M-96784) is denied as moot and Defendant's Cross-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) (CM-96826) is granted. The remainder of the Cross-Motion is denied as moot.

This pro se Claim, which was filed in the office of the Clerk of the Court on July 7, 2017, alleges that, between January 17, 2017 and May 8, 2017, Claimant was wrongfully incarcerated by the New York State Department of Corrections and Community Supervision as he was detained beyond the maximum expiration date of his sentence (Claim, 2).

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)(i), by serving it by regular mail and not by certified mail, return receipt requested (Affirmation of Thomas J. Reilly, Esq., Assistant Attorney General [hereinafter, "Reilly Affirmation"], 2, 3).

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 either in Court of Claims Act 10(3) or (3-b).

In his Affirmation submitted in support of the Cross-Motion, Defense counsel asserts that, on July 7, 2017, Claimant served the Claim upon the Attorney General by regular mail (Reilly Affirmation, 3, and Ex. B attached thereto). In reviewing Exhibit B, which is a photocopy of the envelope in which the Claim purportedly was mailed, the Court notes that the postage consisted of one Purple Heart Forever stamp and that there is no certified mail or return receipt sticker affixed to either the front or the back of the envelope. By correspondence received by the Court on July 16, 2021, Claimant, in opposition to the Cross-Motion, asserts that, when he served the Claim, he sent it by "Certified Return Mail Rec[ei]pt." However, Claimant failed to submit any evidence that he paid for certified mail, return receipt service (i.e., by submitting a disbursement form or a USPS receipt). In addition, the Affidavit of Service attached to the Claim that was filed asserts only that the Claim was mailed at the Sullivan County jail to Defendant. It does not state that it was sent by Certified Mail, Return Receipt Requested.

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 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; 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 [1917]; 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 [1985]). 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 August 14, 2017, as its Seventh Affirmative Defense, that the Claim was served by ordinary mail, and not served personally or by certified mail, return receipt requested, as required by Court of Claims Act 11(a). Therefore, the Court concludes that Defendant established that the Claim was improperly served upon it.

Based upon the foregoing, Defendant's Cross-Motion is granted, and the Claim is hereby dismissed for failure to properly serve it upon the Attorney General as required by Court of Claims Act 11(a)(i). The remainder of Defendant's Cross-Motion is denied as moot. As the Claim has been dismissed, Claimant's Motion to compel discovery is denied as moot.

August 25, 2021

Albany, New York

CHRISTOPHER J. McCARTHY

Judge of the Court of Claims

The following papers were read and considered by the Court on Claimant's Motion to compel and Defendant's Cross-Motion to dismiss:

Papers Numbered

Notice of Motion

& Exhibits attached 1

Notice of Cross-Motion, Affirmation,

& Exhibits attached 2

Correspondence from Claimant received July 16, 2021 3

Filed Papers: Claim, Answer