Opinion
# 2015-016-008 Claim No. 125145 Motion No. M-86102
03-06-2015
TONY McGEE v. THE STATE OF NEW YORK
Tony McGee, Pro se Eric T. Schneiderman, Attorney General By: Roberto Barbosa, AAG
Synopsis
Case information
| UID: | 2015-016-008 |
| Claimant(s): | TONY McGEE |
| Claimant short name: | McGEE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125145 |
| Motion number(s): | M-86102 |
| Cross-motion number(s): | |
| Judge: | Alan C. Marin |
| Claimant's attorney: | Tony McGee, Pro se |
| Defendant's attorney: | Eric T. Schneiderman, Attorney General By: Roberto Barbosa, AAG |
| Third-party defendant's attorney: | |
| Signature date: | March 6, 2015 |
| City: | New York |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The defendant State of New York has moved to dismiss the claim of Tony McGee, which is based upon the allegation that a correction officer at the Great Meadow Correctional Facility, where he resides, wrote out an authorization form without claimant's permission. Section 2 of the claim states that such happened on July 31, 2014; section 3, for apparently the same act, gives the date as a month later on August 31.
The Court of Claims Act requires service of a claim upon the defendant within 90 days and, if not served personally, be served via certified mail, return receipt requested. [Sections 10 (3) and 11 (a)]
While the claim was received by the clerk's office of the Court of Claims on October 21, 2014, it was served on the defendant by regular mail on November 17, 2014. [Defendant's affirmation., exhs A and B]. Even if August 31 is the proper start date for the 90 day period, the method of service used here does not comply with the provisions of the Act.
The Court of Appeals has held that "[b]ecause 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 . . ." Long v State of New York, 7 NY3d 269, 276 (2006). In Dreger v New York State Thruway Auth., 81 NY2d 721 (1992), the Court of Appeals upheld the dismissal of two cases from the Court of Claims in which service was made by regular mail, rather than certified mail, return receipt requested.
The Fourth Department in Filozof v State of New York, 45 AD3d 1405 (2007) reversed the Court of Claims judge and dismissed the claim where the service (of the notice of intention) was by registered mail, return receipt requested.
In view of the foregoing, and having reviewed what was submitted, IT IS ORDERED that motion No. M-86102 to dismiss claim No. 125145 be granted.
The Court reviewed defendant's Notice of Motion and Affirmation together with two exhibits. Claimant submitted no papers in opposition.
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March 6, 2015
New York, New York
Alan C. Marin
Judge of the Court of Claims