Opinion
# 2013-018-413 Claim No. 121620 Motion No. M-82315 Motion No. M-82878
03-06-2013
STEVEN ZAHABA v. STATE OF NEW YORK
Synopsis
The claim filed August 10, 2012 was never served upon the Defendant, accordingly, the claim and the amended claim must be dismissed.
Case information
UID: 2013-018-413 Claimant(s): STEVEN ZAHABA Claimant short ZAHABA name: Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote The caption has been amended by the Court sua sponte to (defendant name) : reflect the State of New York as the only proper Defendant. Third-party claimant(s): Third-party defendant(s): Claim number(s): 121620 Motion number(s): M-82315, M-82878 Cross-motion number(s): Judge: DIANE L. FITZPATRICK Claimant's STEVEN ZAHABA attorney: PRO SE ERIC T. SCHNEIDERMAN Defendant's Attorney General of the State of New York attorney: By: Ray A. Kyles, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: March 6, 2013 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The Defendant brings a pre-answer motion to dismiss the claim for lack of personal and subject matter jurisdiction. Claimant has not responded to the motion.
A claim was filed in the Clerk's Office on August 10, 2012 and given claim number 121620. This claim seeks damages for negligence and medical malpractice. An incomplete affidavit of service is attached omitting the addressee. On September 18, 2012, Claimant filed another claim, printed more legibly, dated, and verified on September 13, 2012. This claim was treated as an amended claim by the Clerk of the Court and given the same claim number.No affidavit of service is attached to this amended claim.
The claim was treated as an amended claim because it asserted basically the same allegations as the first claim and did not include the filing fee or motion, affidavit, or certification required by the Court of Claims Act § 11-a (i) for filing a new claim.
Defendant acknowledges service of the amended claim filed on September 18, 2012, by regular mail, and this is the only claim attached to Defendant's motion papers. By its motion, Defendant argues that the Court lacks personal and subject matter jurisdiction over this claim because it fails to meet the requirements of Court of Claims Act § 11 (b), and the Court lacks jurisdiction over any violation of the U.S. Constitution. Defendant further argues that this Court lacks jurisdiction over the claim because it was served regular mail, not certified mail, return receipt requested, as required by Court of Claims Act § 11.
Defendant has attached, as Exhibit A, a copy of the envelope in which it received the amended claim, reflecting postage of $.45 dated September 14, 2012. The envelope is also date-stamped as received by the Attorney General's Office on September 17, 2012. There is no indication it was sent certified mail, return receipt requested, as required by Court of Claims Act § 11(a).
Court of Claims Act § 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 within the times hereinbefore provided for filing with the clerk of the court."
It is well-established that the requirements for service on the Attorney General are jurisdictional and must be strictly construed (Buckles v State of New York, 221 NY 418 [1917]). Service by regular mail is not service sufficient to commence an action in this Court and the Court cannot ignore the service defect (see Bogel v State of New York, 175 AD2d 493, 494 [3d Dept 1991], ["[s]ervice of the claims upon the Attorney-General by ordinary mail was insufficient to acquire jurisdiction over the State . . ." and the claims were therefore properly dismissed]; Diaz v State of New York, 174 Misc 2d 63, 64 [Ct Cl 1997], ["[s]ervice by regular mail does not comply with the requirements of the statute and such service is therefore not adequate to acquire jurisdiction over the State." Furthermore, ". . . the court does not have discretion to disregard the defect"]).
Although the amended claim filed September 18, 2012 was not properly served, the question is whether Claimant properly served the claim filed August 10, 2012, which was not addressed by Defendant in its motion papers. On January 14, 2013, the Court issued an Order to Show Cause to both parties directing them to submit, in writing, a statement relating to service of the August 10, 2012 claim including copies of any relevant documentary evidence. Claimant was further directed in the Order to submit an affidavit establishing personal service or a copy of the certified mail, return receipt, evidencing proper service upon the Attorney General. Defendant was directed to submit an affidavit from someone with personal knowledge of the contents of the files and records of the Department of Law.
Although Claimant sent a letter to the Court after the return date,indicating proof of service would be forthcoming, his letter was untimely and as of this date, no proof of service has been filed. Claimant bears the burden to establish proper service and jurisdiction over the Defendant (Stewart v Volkswagen of America, Inc., 81 NY2d 203, 207 [1993]). There is no proof the claim filed August 10, 2012 was served upon Defendant, and Defendant has not indicated receipt in any manner of this claim.
The letter is dated February 6, 2013, and was received by the Clerk of the Court on February 11, 2013.
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Accordingly, since the claim filed August 10, 2012 was never served upon the Defendant, the claim and the amended claim must be dismissed.
Based upon the foregoing, the Defendant's motion is GRANTED and claim and amended claim are hereby DISMISSED.
March 6, 2013
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following documents in deciding this motion:
1) Notice of Motion.
2) Affirmation of Ray A. Kyles, Esquire, Assistant Attorney General, in support, with exhibit attached thereto.
3) Order to Show Cause issued by the Court on January 14, 2013.
4) Affirmation in Response to Court's Order to Show Cause of Ray A. Kyles, Esquire, Assistant Attorney General, with exhibits attached thereto.
5) Letter from Claimant dated February 6, 2013, and received by the Clerk of the Court on February 11, 2013.