Opinion
# 2015-015-036 Claim No. 121864 Motion No. M-85594
01-08-2015
LAMAR WHITEHEAD v. THE STATE OF NEW YORK
Lamar Whitehead, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Terrance K. DeRosa, Esquire Assistant Attorney General
Synopsis
Claim was dismissed for improper service.
Case information
| UID: | 2015-015-036 |
| Claimant(s): | LAMAR WHITEHEAD |
| Claimant short name: | WHITEHEAD |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121864 |
| Motion number(s): | M-85594 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Lamar Whitehead, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Terrance K. DeRosa, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 8, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves for dismissal of the instant claim pursuant to CPLR 3211 (a) (2) on the ground it was not served in the manner prescribed by Court of Claims Act § 11 (a) (i).
Claimant, who at the time was a pro se inmate, seeks damages for injuries allegedly sustained as the result of defendant's failure to protect him from a foreseeable assault committed by another inmate on October 27, 2010. In support of its dismissal motion, defendant contends that the claim was served by ordinary mail rather than personal service or certified mail, return receipt requested, as required by Court of Claims Act § 11 (a) (i). Defendant supports its motion with a copy of the envelope in which the claim was mailed (defendant's Exhibit A). The envelope contains no indicia of a certified mailing and reflects postage consistent with ordinary mail service (id.). In opposition to the motion, claimant does not dispute that the claim was served by ordinary mail, but indicates "there was no possible way that I could have complied with the [statute] because I had no money to pay for certified mail and I was incarcerated" (affidavit of Lamar Whitehead, ¶ 6).
Court of Claims Act § 11 (a) (i) requires that the claim be filed with the Clerk of the Court and that "a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general . . ." Inasmuch as the requirements of Court of Claims Act § 11 (a) (i) are jurisdictional in nature (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]), absent waiver of the defense (Court of Claims Act § 11 [c]), service of the claim by ordinary mail is insufficient to acquire jurisdiction over the defendant (Brown v State of New York, 114 AD3d 632 [2d Dept 2014]; Fulton v State of New York, 35 AD3d 977 [3d Dept 2006], lv denied 8 NY3d 809 [2007]; Govan v State of New York, 301 AD2d 757 [3d Dept 2003], lv denied 99 NY2d 510 [2003]; Thompson v State of New York, 286 AD2d 831 [3d Dept 2001]). Here, defendant preserved its defense of improper service by raising it with sufficient particularity as an affirmative defense in its answer (see defendant's Exhibit B, Answer, Fourth Affirmative Defense). To the extent claimant indicates service of the claim by certified mail, return receipt requested, was impossible due to his lack of funds, the Court notes that the applicable regulations require that a correctional facility advance the funds necessary for service by certified mail, return receipt requested, where such service is required by statute (see 7 NYCRR 721.3). As a result of the improper service, therefore, the claim must be dismissed.
Accordingly, the defendant's motion is granted and the claim is dismissed.
January 8, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Notice of motion dated August 26, 2014;
Affirmation of Terrance K. DeRosa dated August 26, 2014 with exhibits;
Affidavit of Lamar White sworn to November 4, 2014.