State's Motion to dismiss for lack of jurisdiction granted as Claimant served the Claim by regular mail and not personally or by certified mail, return receipt requested as required by CCA § 11(a).
|Claimant short name:||P.T.|
|Footnote (claimant name) :||Because this Claim involves an alleged victim of a sexual assault, the caption has been amended to give the Claimant a fictitious name in order to protect his identity. The Chief Clerk is directed to seal the file in Claim No. 132056 pursuant to Civil Rights Law § 50-b (see Civil Rights Law §§ 50-b, 50-c [private right of action for wrongful disclosure of victim of sexual offense]).|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||P.T., Pro Se|
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Glenn C. King, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||August 31, 2021|
|See also (multicaptioned case)|
For the reasons set forth below, Defendant's Motion to dismiss the Claim based upon lack of jurisdiction for failure to comply with the service requirements of Court of Claims Act § 11(a) is granted.
This pro se Claim, which was filed in the office of the Clerk of the Court on September 27, 2018, asserts that, on September 8, 2017, Claimant was subjected to an "excessive pat-frisk" by a named New York State Police Trooper in Clifton Park, New York. It is further asserted that the trooper wrongfully touched Claimant's private parts (Claim, ¶¶ 2-4).
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 ordinary mail and not by certified mail, return receipt requested (Affirmation of Glenn C. King, Esq., Assistant Attorney General [hereinafter, "King Affirmation"], ¶¶ 2, 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 either Court of Claims Act § 10(3) or (3-b).
In his affirmation submitted in support of the Motion, Defense counsel asserts that, on September 27, 2018, Claimant served the Claim upon the Attorney General by ordinary mail (King Affirmation, ¶ 4, and Ex. A attached thereto). In reviewing Exhibit A, which includes a photocopy of the envelope in which the Claim purportedly was mailed, the Court notes that the postage amounted to $.47 and that there is no certified mail or return receipt sticker affixed to either the front or the back of the envelope. Claimant did not submit any papers in opposition to Defendant's Motion.
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 November 2, 2018, as its Fourth 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 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).
August 31, 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
Filed Papers: Claim, Answer