Opinion
# 2015-016-042 Claim No. 123705 Motion No. M-86486
07-13-2015
JOHN EVANGELISTA v. THE STATE OF NEW YORK
Moody Law Office By: Simon K. Moody, Esq. Eric T. Schneiderman, Attorney General By: Joseph L. Paterno, AAG
Synopsis
Case information
| UID: | 2015-016-042 |
| Claimant(s): | JOHN EVANGELISTA |
| Claimant short name: | EVANGELISTA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123705 |
| Motion number(s): | M-86486 |
| Cross-motion number(s): | |
| Judge: | Alan C. Marin |
| Claimant's attorney: | Moody Law Office By: Simon K. Moody, Esq. |
| Defendant's attorney: | Eric T. Schneiderman, Attorney General By: Joseph L. Paterno, AAG |
| Third-party defendant's attorney: | |
| Signature date: | July 13, 2015 |
| City: | New York |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The defendant has moved to dismiss the suit of John Evangelista on the ground that the notice of intention to file a claim was served by regular mail. According to Mr. Evangelista, on December 25, 2010, at the Arthur Kill Correctional Facility on Staten Island, he suffered a fall which would not have occurred had he been assigned a lower bunk bed.
The Court of Claims Act requires that pleadings (either a claim or a notice of intention to file a claim), unless done personally, be served by certified mail, return receipt requested (section 11[a][i] of the Act). The Court of Appeals has stated that "Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed . . ." (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). In Dreger, the Court of Appeals upheld the dismissal of two suits in the Court of Claims because the method of service was regular mail.
A validly served notice of intention to file a claim would have extended the time for service upon the Attorney General to two years from the date of accrual (section 10 [3] of the Act). Evangelista filed his claim with the Court nearly three years later, on December 24, 2013 and personally served the Attorney General's Office on March 5, 2015 (exhibit A to defendant's Affirmation in Support).
John Evangelista's notice of intention to file a claim was not properly served upon the Attorney General; accordingly, and having reviewed what was submitted, IT IS ORDERED that defendant's motion No. M-86486 is granted, and claim No.123705 is dismissed.
The following were reviewed: from defendant, a Notice of Motion and an Affirmation in Support (with exhibit A); no papers were submitted by claimant, other than a letter of April 14, 2015, requesting an adjournment of the motion return date.
July 13, 2015
New York, New York
Alan C. Marin
Judge of the Court of Claims