Summary
In Hodge, the Third Department concluded that improper service of the claim deprived the court of personal jurisdiction over the State. Defendant is not arguing that the court lacks personal jurisdiction because the claim was improperly served, rather that the claim did not provide a sufficient description of the location enabling it to investigate the incident.
Summary of this case from Kanof v. StateOpinion
March 2, 1995
Appeal from the Court of Claims (Benza, J.).
Claimant properly filed and served a notice of intention to file a claim on August 2, 1990. On November 27, 1992, he mailed a claim by U.S. Postal Service Express Mail to the Attorney-General's Office. By stipulation, the parties extended the State's time to answer or move against the claim and, thereafter, the State moved to dismiss the claim upon the ground that the claim was improperly served. Claimant cross-moved for summary judgment. The Court of Claims granted the motion and denied the cross motion. Claimant moved for reconsideration. The court granted the motion, adhered to its earlier decision and denied claimant's oral motion (made Aug. 4, 1993) to have his notice of intention deemed a claim. Claimant appeals.
Claimant contends that as he properly served his notice of intention, Court of Claims Act § 11 (a) permits him to serve the claim by other means, i.e., express mail. Claimant argues that the use of the conjunction "or" at the beginning of Court of Claims Act § 11 (a) ("The claim or notice of intention shall be filed" [emphasis supplied]) supports this conclusion. We disagree.
A reading of Court of Claims Act § 11 (a) reveals that the questioned "or" should be construed as "and" in the sense that both notices of intention and claims are subject to the requirements of the section, even though the use of a notice of intention is optional. Standard rules of statutory construction provide that "or" and "and" may be construed as interchangeable when necessary to effectuate apparent legislative intent (see, McKinney's Cons Laws of NY, Book 1, Statutes § 365). Such is the situation here.
Contrary to the implication raised by claimant, no action was pending against the State until the claim was served (see, Jackson v. State of New York, 85 A.D.2d 818, lv dismissed, lv denied 56 N.Y.2d 568). Claimant's notice of intention merely extended the 90-day limitations period in which to commence a claim (see, Kaplan v. State of New York, 152 A.D.2d 417, 419-420). Service of a claim which is not in accordance with Court of Claims Act § 11 does not confer personal jurisdiction over the State and no action is commenced (see, Sciarabba v. State of New York, 152 A.D.2d 229, 231). Alternative mailings which do not equate to certified mail, return receipt requested, are inadequate and do not comply with Court of Claims Act § 11 (a) (see, Charbonneau v. State of New York, 178 A.D.2d 815, 816, affd 81 N.Y.2d 721; Bogel v. State of New York, 175 A.D.2d 493, 494; Baggett v. State of New York, 124 A.D.2d 969; Byrne v. State of New York, 104 A.D.2d 782, 784, lv denied 64 N.Y.2d 607; Schaeffer v. State of New York, 145 Misc.2d 135). In no event can Court of Claims Act § 11 (a) be interpreted as subjecting the State to personal jurisdiction by any of a variety of unidentified alternative methods of service to be chosen by a claimant in his or her discretion (see, Dreger v. New York State Thruway Auth., 81 N.Y.2d 721, 724).
Within claimant's argument is the contention that the Court of Claims abused its discretion in refusing to treat the notice of intention as a claim (see, Court of Claims Act § 10). A review of the notice of intention reveals a confusing discourse of conclusory allegations with cross-references to voluminous documents from which it is impossible to decipher a viable cause of action (see, Artale v. State of New York, 140 A.D.2d 919; see also, Jermosen v. State of New York, 178 A.D.2d 810; Waters of Saratoga Springs v. State of New York, 116 A.D.2d 875, affd 68 N.Y.2d 777). The Court of Claims did not abuse its discretion in denying claimant's oral motion.
Claimant's remaining contention, that the parties' stipulation extending the State's time to answer or otherwise move against the claim equates to a waiver of personal jurisdiction objections, has no merit (see, Graham v. Sylvan Lawrence Co., 82 A.D.2d 980, 981).
Mikoll, Mercure, Casey and Peters, JJ., concur. Ordered that the order is affirmed, without costs.