Opinion
# 2018-018-932 Claim No. 130712 Motion No. M-91800
05-11-2018
RAYMOND PEREZ v. STATE OF NEW YORK
RAYMOND PEREZ Pro Se HON. BARBARA D. UNDERWOOD Acting Attorney General of the State of New York By: Michael T. Krenrich, Esquire Assistant Attorney General
Synopsis
Defendant's pre-answer to dismiss is granted and the claim is dismissed for failure to comply with CCA § 11 (a) (i).
Case information
| UID: | 2018-018-932 |
| Claimant(s): | RAYMOND PEREZ |
| Claimant short name: | PEREZ |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130712 |
| Motion number(s): | M-91800 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | RAYMOND PEREZ Pro Se |
| Defendant's attorney: | HON. BARBARA D. UNDERWOOD Acting Attorney General of the State of New York By: Michael T. Krenrich, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 11, 2018 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant brings a pre-answer motion to dismiss the claim for failure to properly serve it upon the Attorney General. Claimant has not responded to the motion.
Defendant argues that the Court lacks jurisdiction over the claim because Claimant failed to serve the claim in accordance with Court of Claims Act section 11 (a) by certified mail, return receipt requested or personal service. Defendant affirms that on December 6, 2017, a claim was served upon the Attorney General by regular mail. Defendant has attached, as part of Exhibit A, a copy of the envelope in which the claim was received bearing a metered stamp reflecting $2.03 of postage and no evidence of certified mail. The affidavit of service attached to the claim and filed with the Clerk of the Court only states that the claim was mailed on November 30, 2017, it does not indicate the form of mailing.
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 . . .".
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]; Spraight v State of New York, 91 AD3d 995 [3d Dept 2012]). "Inasmuch as the claim herein was served by regular mail, the court was deprived of subject matter jurisdiction" and thus the claim must be dismissed (Zoeckler, 109 AD3d at 1133).
Here, Defendant has established 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 must conclude that it lacks jurisdiction over the Defendant.
Based upon the foregoing, Defendant's motion is GRANTED and the claim is hereby DISMISSED.
May 11, 2018
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Notice of Motion. 2) Affirmation of Michael T. Krenrich, Esquire, Assistant Attorney General, in support, with exhibit attached thereto.