Defendant's post answer motion to dismiss pro se claimant's claim in its entirety is granted on the ground that the Court lacks subject matter jurisdiction over the claim pursuant to Court of Claims Act §§ 10 (3), 10 (3-b), and 11 because it was served by regular mail.
|Claimant short name:||BELL|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DEBRA A. MARTIN|
|Claimant's attorney:||NO APPEARANCE|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: TAMARA B. CHRISTIE, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 24, 2021|
|See also (multicaptioned case)|
The following papers were read on defendant's motion to dismiss the claim:
1. Notice of Motion with Affirmation of Tamara B. Christie, AAG, and attached exhibits, filed May 27, 2021;
2. Filed papers: claim, answer.
Pro se claimant filed a verified claim on December 12, 2019 alleging that on March 20, 2019 at approximately 12:30 p.m., while incarcerated at the Wyoming Correctional Facility, dental staff negligently extracted two teeth, failed to extract the decayed tooth resulting in claimant suffering pain in his mouth, headaches, the inability to eat on one side of his mouth, and mental anguish. Claimant seeks $20,000 in damages.
Defendant filed a post-answer motion to dismiss on May 27, 2021 on the ground that the claim was not served in compliance with Court of Claims Act § 11 because it was served by regular mail. The claimant did not respond to the motion. For the reasons set forth below, defendant's motion to dismiss is granted.
In support of its motion, the Assistant Attorney General submitted an affirmation averring the Court lacks personal jurisdiction over it because the defendant was not served in compliance with the Court of Clams Act. (¶¶ 5-8.) Attached to the affirmation was a copy of the envelope in which the claim was served with postage indicating it was mailed by first class mail. (affirmation of defendant's counsel, exhibit B.)
Although claimant attached to the claim, filed with the Clerk of the Court of Claims, an affidavit of service, sworn to December 8, 2019, it only stated that the claim was mailed "postage prepaid in a post office or official depository of the United States Postal Service" without specifying the type of service. Claimant filed a second affidavit of service on February 10, 2020, equally ineffective and using the same language in response to the defendant's answer.
Section 11 (a) (i) of the Court of Claims Act, entitled Filing, service and contents of claim or notice of intention, sets forth the requirements for commencing an action in the Court of Claims. It requires that "[t]he 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 time hereinbefore provided for filing with the clerk of the court." "It is well settled that nothing less than strict compliance with the jurisdictional requirements of the Court of Clams Act is necessary." (Zoeckler v State of New York, 109 AD3d 1133, 1133 [4th Dept 2013] [internal quotation marks and citations omitted].) "Failure to serve a claim upon the Attorney General is a non-waivable jurisdictional defect which divests this Court of subject matter jurisdiction." (Brown v State of New York, UID No. 2015-015-052 [Ct Cl, Collins, J., May 7, 2015][internal citations omitted].)
Accordingly, in light of the above, defendant's motion to dismiss (M-96839) is
granted and claim no. 134134 is dismissed.
August 24, 2021
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims