Faulkner v. State

FRANK P. MILANO

Synopsis

Claim served by regular mail more than ninety days after accrual is jurisdictionally defective and is dismissed.

Case information

Defendant(s):

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Judge:

Signature date:

Official citation:

Appellate results:

See also (multicaptioned case)

UID:	2017-041-037
Claimant(s):	KENNETH T. FAULKNER, JR.
Claimant short name:	FAULKNER
Footnote (claimant name) :
		THE STATE OF NEW YORK
Footnote (defendant name) :
		120511
Motion number(s):	M-90093
Cross-motion number(s):
		FRANK P. MILANO
Claimant's attorney:	NONE
Defendant's attorney:	HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Glenn C. King, Esq. Assistant Attorney General
Third-party defendant's attorney:
		June 1, 2017
City:	Albany
Comments:

Decision

Defendant moves to dismiss the claim because it was served by regular mail more than ninety days after its accrual. Claimant has not opposed defendant's motion to dismiss.

Defendant states that on October 21, 2011 it was served with the claim by regular mail. The claim alleged that on January 22, 2011 claimant was assaulted by fellow inmates at Clinton Correctional Facility due to defendant's negligent failure to protect claimant.

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 1319).

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]).

Further, the claim was served more than ninety days after its accrual on January 22, 2011. Court of Claims Act 10 §§ 3 and 3-b, respectively, require that a claim to recover damages for personal injuries caused by the tortious conduct of an employee of the state, whether the defendant's conduct was intentional or unintentional, be served upon the attorney general within ninety days after the accrual of the claim.

Courts have consistently held that "[a]s a condition of the State's limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim" (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 [2005]).

The claim is jurisdictionally defective because it was served by regular mail more than ninety days after it accrued. The defendant's motion to dismiss the claim is granted. The claim is dismissed.

June 1, 2017

Albany, New York

FRANK P. MILANO

Judge of the Court of Claims

Papers Considered:

1. Defendant's Notice of Motion For Dismissal, filed March 17, 2017; 2. Affirmation of Glenn C. King, dated March 17, 2017, and attached exhibits.