Opinion
# 2016-018-745 Claim No. 128313 Motion No. M-89184
11-09-2016
HERBY JEAN v. STATE OF NEW YORK
HERBY JEAN Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Ray A. Kyles, Esquire Assistant Attorney General
Synopsis
Claim is dismissed - improper service upon the Attorney General.
Case information
| UID: | 2016-018-745 |
| Claimant(s): | HERBY JEAN |
| Claimant short name: | JEAN |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128313 |
| Motion number(s): | M-89184 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | HERBY JEAN Pro Se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Ray A. Kyles, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 9, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant brings a pre-answer motion to dismiss the claim for lack of personal and subject matter jurisdiction. Claimant submitted a response to the motion.
Defendant argues that the Court lacks personal and subject matter jurisdiction over the claim because Claimant failed to serve the notice of intention to file a claim and the claim in accordance with Court of Claims Act section 11 (a) by certified mail, return receipt requested, or personal service. Defendant also asserts that the claim is untimely for any alleged wrongdoing relating to Defendant's issuance of certain misbehavior reports on February 22 and 26, 2016. Defendant further alleges that the State is entitled to absolute immunity relating to its discipline of inmates in its correctional facilities. Claimant, in response, does not deny that he served the notice of intention and claim by regular mail but, instead, alleges that he lacks the resources to pay for certified mail, return receipt requested. Claimant also alleges that the issuance of the misbehavior reports was harsh treatment.
Court of Claims Act section 11 (a) (i) states in relevant part 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 . . . Any notice of intention shall be served personally or by certified mail, return receipt requested, upon the attorney general . . ."
It is well-established that the requirements for service on the Attorney General are jurisdictional and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]). Service by regular mail is not service sufficient to commence an action in this Court and the Court cannot ignore the service defect (see Zoeckler v State of New York, 109 AD3d 1133 [4th Dept 2013] "[i]nasmuch as the claim herein was served by regular mail, the court was deprived of subject matter jurisdiction and thus properly dismissed the claim"; see also Spraight v State of New York, 91 AD3d 995 [3d Dept 2012]).
Here, Defendant has established and Claimant does not dispute that the claim was served upon the Attorney General by regular mail. This is not a method of service in compliance with Court of Claims Act section 11 (a) (i). Claimant has failed to meet his burden of coming forward with proof that service of the claim was completed in accordance with the requirements of Court of Claims Act section 11 (a) (i) (see Kolvek v Ferrucci, 245 AD2d 1078 [4th Dept1997]). Thus, the Court lacks jurisdiction over Defendant.
Claimant's argument that he lacked the resources to send the claim by certified mail, return receipt requested, is not persuasive. Pursuant to the Rules for the Department of Corrections and Community Supervision [7 NYCRR] section 720.8 (b) and (c) allow for free postage for privileged correspondence and advanced funds for sending legal mail in accordance with the procedures in Part 721 [7 NYCRR § 721].
Based upon the foregoing, Defendant's motion is GRANTED and the claim is hereby DISMISSED. Defendant's other arguments for dismissal are accordingly moot.
November 9, 2016
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this matter: 1) Notice of Motion. 2) Affirmation of Ray A. Kyles, Esquire, Assistant Attorney General, in support, with exhibits attached thereto. 3) Letter Reply of Herby Jean, dated September 7, 2014 [sic], in opposition.