Opinion
# 2014-041-039 Claim No. 123578 Motion No. M-84834 Cross-Motion No. CM-84943
07-01-2014
JUNIOR WILSON v. THE STATE OF NEW YORK
JUNIOR WILSON Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Jessica Hall, Esq. Assistant Attorney General
Synopsis
Claimant's motion for summary judgment is denied where claimant fails to attach pleadings to motion papers; Defendant's cross-motion to dismiss is granted on ground that claim was served upon Attorney General by regular mail and service was insufficient to obtain jurisdiction over defendant.
Case information
| UID: | 2014-041-039 |
| Claimant(s): | JUNIOR WILSON |
| Claimant short name: | WILSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123578 |
| Motion number(s): | M-84834 |
| Cross-motion number(s): | CM-84943 |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | JUNIOR WILSON Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Jessica Hall, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 1, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for summary judgment on his claim alleging that defendant wrongfully confined him in keeplock at Clinton Correctional Facility for 31 days as a result of a misbehavior report which resulted in a disciplinary determination that found claimant not guilty of all the charges, on October 11, 2013.
Defendant opposes the claimant's motion and cross-moves to dismiss the claim because the Court lacks jurisdiction over the claim which was served on the Attorney General by regular mail.
CPLR § 3212 (b) requires that claimant provide a "copy of the pleadings" in support of the motion. Claimant's moving papers do not include a copy of either the claim or the defendant's answer and a motion for summary judgment is "properly denied in its entirety on that ground alone" (Senor v State of New York, 23 AD3d 851, 852 [3d Dept 2005]; see Bonded Concrete v Town of Saugerties, 3 AD3d 729, 730 [3d Dept 2004], lv dismissed 2 NY3d 793 [2004]).
Claimant's motion for summary judgment is denied.
The defendant's cross-motion to dismiss the claim will be considered next.
Defendant cross-moves to dismiss the claim based upon claimant's alleged failure to properly serve the claim upon the Attorney General. In particular, defendant has submitted proof that the claim was served upon the Attorney General by regular mail rather than by certified mail, return receipt requested. Claimant's opposition to the defendant's motion does not deny that the claim was served by regular mail.
Court of Claims Act § 11 (a) (i), provides, at relevant part:
"[A] copy [of the claim] shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court."Claimant is required to satisfy the "literal notice requirements of Court of Claims Act § 11" (Femminella v State of New York, 71 AD3d 1319 [3d Dept 2010]). Any manner of service other than personal service or certified mail, return receipt requested, is insufficient to strictly fulfill the statutory criteria (Femminella 71 AD3d at 1320).
Service of a claim by regular mail upon the Attorney General is insufficient to obtain personal jurisdiction over the defendant (Fulton v State of New York, 35 AD3d 977, 978 [3d Dept 2006], lv denied 8 NY3d 809 [2007]; see Govan v State of New York, 301 AD2d 757, 758 [3d Dept 2003], lv denied 99 NY2d 510 [2003]; Thompson v State of New York, 286 AD2d 831 [3d Dept 2001]; Turley v State of New York, 279 AD2d 819 [3d Dept 2001], lv denied 96 NY2d 708 [2001], rearg denied 96 NY2d 855 [2001]).
The defendant's cross-motion is granted. The claim is dismissed.
July 1, 2014
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion for Summary Judgment, filed March 12, 2014;
2. Affidavit of Junior Wilson, sworn to March 4, 2014;
3. Defendant's Notice of Cross-Motion to Dismiss, filed April 15, 2014;
4. Affirmation of Jessica Hall, dated April 14, 2014, and annexed exhibits;
5. Claimant's Reply Affidavit, sworn to May 12, 2014.