Summary
affirming dismissal when claimant used ordinary mail to serve the state
Summary of this case from Lee v. StateOpinion
March 12, 1998
Appeal from the Court of Claims (Benza, J.).
Claimant, an inmate at Franklin Correctional Facility in Franklin County, seeks to recover damages for injuries he sustained on March 19, 1996 following an assault by a fellow inmate. Claimant contends that the State was negligent because at the time of the assault a correction officer was not at his assigned post located a few feet away from where the assault took place. On April 20, 1996, claimant mailed, by ordinary mail, a notice of intention to file a claim to the Attorney-General's office. On May 16, 1996, claimant served his claim on the State by regular mail. Thereafter, claimant moved to amend his claim to, inter alia, comply with the statutory service requirements. The State opposed the motion and cross-moved for a dismissal of the claim on the ground that the claim was jurisdictionally defective for failure to properly serve the Attorney-General. The Court of Claims granted the State's cross motion, thereby rendering claimant's motion academic. This appeal by claimant ensued.
Court of Claims Act § 11 (a) provides, in pertinent part, that the notice of intention to file a claim and the claim "shall be served personally or by certified mail, return receipt requested, upon the attorney general". Generally, the use of ordinary mail to serve the claim upon the Attorney-General is insufficient to acquire jurisdiction over the State (see, Bogel v. State of New York, 175 A.D.2d 493, 494). Inasmuch as claimant concedes that he "failed to properly serve the [State]", we conclude that the Court of Claims properly dismissed the claim (see, id.; Baggett v. State of New York, 124 A.D.2d 969, 970).
Claimant attempts to argue that the State is estopped from raising a jurisdictional defect, alleging that a prison official failed to abide by his request that the claim be sent by certified mail, return receipt requested. Inasmuch as claimant raises this estoppel argument for the first time on appeal, we find that it has not been preserved for our review (see, Burns v. Young, 239 A.D.2d 727, 729; General Elec. Tech. Servs. Co. v. Clinton, 173 A.D.2d 86, 89, lv denied 79 N.Y.2d 759). In any event, we note that in opposing the State's cross motion, claimant asserted that the failure to serve the Attorney-General by certified mail was due to the fact that he was forced to "rely on those unfamiliar with legal procedure to assist him in filing his original claim", referring only to the assistance he received from a fellow prisoner assigned to the correction facilities' law library. Moreover, claimant's reliance on Houston v. Lack ( 487 U.S. 266) and Dory v. Ryan ( 999 F.2d 679, mod on reh. 25 F.3d 81) is misplaced inasmuch as "the [New York] statutes governing filing and service of the papers initiating Court of Claims actions do not approximate, much less mirror, the Federal rules considered in Houston and Dory (supra)" (Espinal v. State of New York, 159 Misc.2d 1051, 1054).
Mercure, J. P., White, Peters and Carpinello, JJ., concur.
Ordered that the order is affirmed, without costs.