W. BROOKS DeBOW

Synopsis

Defendant's cross motion to dismiss claim granted. Claim was served on Attorney General by ordinary mail, not certified mail, return receipt requested. Jurisdictional defect cannot be overcome by claimant's assertions of actual notice and lack of prejudice.

Case information

UID: 2013-038-523 Claimant(s): ROBERT LOGAN Claimant short name: LOGAN Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 121827 Motion number(s): M-83100 Cross-motion number(s): CM-83110 Judge: W. BROOKS DeBOW Claimant's attorney: ROBERT LOGAN, Pro se ERIC T. SCHNEIDERMAN, Attorney General Defendant's attorney: of the State of New York By: Anthony Rotondi, Assistant Attorney General Third-party defendant's attorney: Signature date: April 22, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision

Claimant, an individual incarcerated in a state correctional facility, has filed this claim seeking damages for personal injury he sustained as a result of defendant's alleged negligence. Claimant moves for summary judgment on the claim. Defendant opposes claimant's motion for summary judgment and cross-moves for an order dismissing the claim on the ground that it was not served by certified mail, return receipt requested, as required by the Court of Claims Act. Claimant opposes the cross motion.

Court of Claims Act § 11 (a) (i) requires that if a claim is served upon the Attorney General by mail, it must be accomplished by certified mail, return receipt requested. The service requirements of the Court of Claims Act must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]), and the failure to effect service by certified mail, return receipt requested is a jurisdictional defect that requires dismissal of the claim (see Turley v State of New York, 279 AD2d 819 [3d Dept 2001], lv denied 96 NY2d 708 [2001]; Philippe v State of New York, 248 AD2d 827 [3d Dept 1998]; Estrella v State of New York, UID No. 2008-018-634 [Ct Cl, Fitzpatrick, J., Sept. 3, 2008]; McTier v State of New York, UID No. 2008-030-511 [Ct Cl, Scuccimarra, J., Mar. 6, 2008]). In its answer to the claim, defendant explicitly asserted that the claim had been improperly served by first class mail (seeVerified Answer, Third Defense). In support of its cross motion to dismiss, defendant has demonstrated that the claim was served by ordinary first class mail and not by certified mail, return receipt requested (see Rotondi Affirmation, ¶ 6; Exhibit A). Claimant concedes that the claim was improperly served, but he argues that defendant has not been prejudiced thereby, and that defendant has not disproved the merit of his claim. These contentions are insufficient to defeat defendant's cross motion because claimant's assertions of actual notice and lack of prejudice cannot overcome the jurisdictional defect of lack of proper service (see Turley v State of New York, 279 AD2d at 819). Accordingly, the claim must be dismissed.

In light of the jurisdictional defect that requires dismissal of the claim, the merits of claimant's motion for summary judgment need not be addressed. Accordingly, it is

ORDERED, that claimant's motion number M-83100 is DENIED; and it is further

ORDERED, that defendant's cross motion is GRANTED, and claim number 121827 is DISMISSED.

April 22, 2013

Albany, New York

W. BROOKS DeBOW

Judge of the Court of Claims

Papers considered:

(1) Claim Number 121827, filed October 4, 2012;

(2) Verified Answer, filed November 7, 2012;

(3) Notice for Summary Judgment, dated January 28, 2013;

(4) Affidavit of Robert Logan in Support of Notice for Summary Judgment, sworn to January 31, 2013, with Exhibits A-I;

(5) Notice of Cross-Motion, dated March 6, 2013;

(6) Affirmation in Opposition to Claimant's Motion for Summary Judgment and in Support of

Defendant's Cross-Motion to Dismiss of Anthony Rotondi, AAG, dated March 6, 2013, with Exhibits A-B;

(7) Reply in Opposition to Defendant's Cross-Motion Notice, dated March 11, 2013;

(8) Affidavit of Robert Logan in Support of Reply in Opposition to Defendant's Cross-Motion Notice, sworn to March 12, 2013.