CLAIM AGAINST NEW YORK STATE FOR BREACH OF PRIVACY TOSSED ON A TECHNICALITY--PAPERS SERVED INCORRECTLY ON ATTORNEY GENERAL

Court: Court of Claims of New York

Case: Duncan v. State of New York

Date: Aug. 12, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Bronx and Queens; Queens injury attorney)

Comment: Interesting case; from a lower level (not appeals) court. Claimant sues New York State because his psychiatric hospital records was left in the open where others could see it. This case is tossed out on a technicality -- by sending his "claim" by regular mail, he didn't serve the papers correctly. Note that he sued New York State pro se. this means "on his own," or, in other words, it's likely that no lawyer would take this case.

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John Duncan, Claimant in this case appearing pro se, seeks damages for injuries sustained while detained at the Central New York Psychiatric Center when, on July 11, 2010, a copy of a report containing Claimant's medical and personal information was left in plain sight where other residents could view it. Claimant moves for an order dismissing the affirmative defenses asserted in Defendant's answer and for summary judgment on his Claim. Defendant cross moves seeking dismissal of the Claim pursuant to CPLR Sec. 3211(a)(2) and (8) and Court of Claims Act Sec.11 for lack of subject matter and personal jurisdiction based upon Claimant's failure to properly serve the Claim upon the Attorney General.

Lawsuits for money damages brought against the State in the Court of Claims are allowed because the State waived its sovereign immunity conditioned upon Claimant's compliance with specific statutory requirements that are set forth in the jurisdictional Article (Article II) of the Court of Claims Act (see Court of Claims Act Secs. 8 and 9[2]; Lepkowski v. State of New York, 1 N.Y.3d 201, 206 [2003]; Gates v. State of New York, 128 N.Y. 221, 228 [1891] ). These statutory preconditions to such Claims, including the filing and service requirements mandated by Court of Claims Act Sec.11, are jurisdictional and must be strictly construed (Lichtenstein v. State of New York, 93 N.Y.2d 911, 913 [1999]; Dreger v. New York State Thruway Auth., 81 N.Y.2d 721, 724 [1992]; Finnerty v. New York State Thruway Auth., 75 N.Y.2d 721, 722 [1989] ).

Court of Claims Act Sec. 11(a)(i) mandates that a copy of the Claim be served personally or by certified mail, return receipt requested, upon the Attorney General within the applicable time period provided in Section 10 of the Court of Claims Act. However, an objection to the manner of service is waived unless specifically raised in Defendant's motion to dismiss made prior to the Answer, or in the Answer itself (see Court of Claims Act ' 11[c]; Turley v. State of New York, 279 A.D.2d 819, 819, 719 N.Y.S.2d 380 [3d Dept 2001], lv denied 96 N.Y.2d 708 [2001] ). Therefore, unless the objection is so waived, failure to serve the Attorney General in the manner prescribed by Court of Claims Act Sec. 11(a)(i) is a jurisdictional defect requiring dismissal of the Claim (see Filozof v. State of New York, 45 A.D.3d 1405, 1406, 844 N.Y.S.2d 731 [4th Dept 2007] ).

In 1988, the Appellate Division, Fourth Department, had observed that "it has been uniformly held that failure to serve the Attorney General pursuant to Court of Claims Act Sec. 11 divests the court of jurisdiction over the State" (Finnerty v. New York State Thruway Auth., 140 A.D.2d 941, 942, 529 N.Y.S.2d 621 [4th Dept 1988] [citations omitted] ). In other words, failure to serve the Claim upon the Attorney General (i.e. lack of service) and failure to serve the Claim by certified mail, return receipt requested (i.e. manner of service), both of which are required by Court of Claims Act Sec. 11(a)(i), resulted in a lack of personal jurisdiction over the Defendant. In the Finnerty case, the Claimant failed to serve a copy of the Claim upon the Attorney General. On appeal, the Court of Appeals affirmed the Order of the Appellate Division dismissing the Claim, but reasoned that, because compliance with Court of Claims Act Sec.11 is a condition to the State's waiver of sovereign immunity, lack of service upon the Attorney General resulted "not in a failure of personal jurisdiction ... but in a failure of subject matter jurisdiction" (see Finnerty v. New York State Thruway Auth., 75 N.Y.2d at 723, 551 N.Y.S.2d 188, 550 N.E.2d 441). Under this line of reasoning, failure to comply with any portion of Court of Claims Act Sec.11 should similarly result in a failure of subject matter jurisdiction.

Support for this reasoning is found in a series of post‑Finnerty Court of Appeals cases dismissing Claims because the Claimant had failed to adhere strictly to the procedural conditions prescribed in Article II of the Court of Claims Act, which are conditions precedent to the State's waiver of its sovereign immunity. In Dreger v. New York State Thruway Auth., 81 N.Y.2d 721, 593 N.Y.S.2d 758, 609 N.E.2d 111 (1992), the Court of Appeals held that lack of service of the Claim upon the Attorney General and failure to serve the Claims by certified mail, return receipt requested, meant that the Claims were not timely commenced for purposes of CPLR ' 205(a) authorizing recommencement of an otherwise timely action that had been dismissed. In Lichtenstein v. State of New York, 93 N.Y.2d 911, 690 N.Y.S.2d 851, 712 N.E.2d 1218 (1999), the Court ruled that failure to comply with the time periods for filing and serving the Claim, required by Court of Claims Act Sec. 10 and cross‑referenced in Sec. 11, meant that the action had not been properly commenced. In Alston v. State of New York, 97 N.Y.2d 159, 737 N.Y.S.2d 45, 762 N.E.2d 923 (2001), the Court held that Claimants' failure to timely file their Claim, as required by Court of Claims Act ' 10 and cross‑referenced in Sec. 11, required dismissal. In Lepkowski v. State of New York, 1 N.Y.3d 201, 770 N.Y.S.2d 696, 802 N.E.2d 1094 (2003), the Court of Appeals ruled that failure to adequately plead the Claim, as required by Court of Claims Act Sec. 11(b), resulted in a jurisdictional defect requiring dismissal. In Long v. State of New York, 7 N.Y.3d 269, 819 N.Y.S.2d 679, 852 N.E.2d 1150 (2006), the Court held that Claimant's failure to verify the Claim in accordance with Court of Claims Act Sec. 8-b mandates dismissal. Most recently, in Kolnacki v. State of New York, 8 N.Y.3d 277, 832 N.Y.S.2d 481, 864 N.E.2d 611 (2007), the Court ruled that failure to plead in the Claim the total sum of monetary damages, as required by Court of Claims Act ' 11(b), was a jurisdictional defect requiring dismissal. Because service of the Claim upon the Attorney General by certified mail, return receipt requested, is required by Court of Claims Act Sec. 11, a Claimant's failure to serve in this manner should likewise be dismissed for a failure of subject matter jurisdiction, unless waived pursuant to Section 11(c).

In this case, Defendant preserved its objection to the manner of service in its Answer (see Answer, ¶10). In support of its cross motion, defense counsel asserts that a Claim was received by the Attorney General by regular mail on January 24, 2011 (see Affirmation of Thomas Trace, Esq., ¶ 2 and Ex. C attached to Defendant's cross motion) and offers, among other things, a photocopy of the mailing envelope used to mail the Claim to the Attorney General which reveals postage in the amount of $1.73 with no certified mail or return receipt sticker affixed thereto. Claimant neither opposes Defendant's cross motion nor submits any evidence in opposition to the cross motion. Rather, in an affidavit submitted in support of his motion, Claimant admits to serving the Claim on the Attorney General via first‑class mail. In light of this uncontroverted evidence, the Court concludes that Claimant served his Claim by first‑class mail, and thereby failed to comply with Court of Claims Act Sec. 11(a)(i). This deprived the Court of subject matter jurisdiction based on the State's sovereign immunity (see Alston v. State of New York, 97 N.Y.2d at 163, 737 N.Y.S.2d 45, 762 N.E.2d 923; Finnerty v. New York State Thruway Auth., 75 N.Y.2d at 723, 551 N.Y.S.2d 188, 550 N.E.2d 441).

Alternatively, failure to serve the Claim upon the Attorney General in the manner prescribed by Court of Claims Act Sec. 11 results in a lack of jurisdiction over the Defendant under a traditional analysis (see Filozof v. State of New York, 45 A.D.3d 1405, 844 N.Y.S.2d 731 [4th Dept 2007] [registered mail, return receipt requested, is insufficient to obtain jurisdiction]; Fulton v. State of New York, 35 A.D.3d 977, 825 N.Y.S.2d 816 [3d Dept 2006], lv denied 8 N.Y.3d 809 [2007]; [ordinary mail is insufficient to acquire jurisdiction of the State]; Martinez v. State of New York, 282 A.D.2d 580, 722 N.Y.S.2d 907 [2d Dept 2001], lv denied, 96 N.Y.2d 720 [2001] [express mail failed to acquire jurisdiction]; see generally Feinstein v. Bergner, 48 N.Y.2d 234, 241 [1979] ["[N]otice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court"] ).

Accordingly, Defendant's Cross Motion No. CM-79981 is granted, Claimant's Motion No. M-79800 is denied as moot, and the Claim is dismissed.

The following papers were read and considered by the Court:

Verified Claim, filed February 28, 2011;

Verified Answer;

Claimant's Notice of Motion and Affidavit of John Duncan, with one attached exhibit;

Defendant's Notice of Cross Motion and Affirmation of Thomas Trace, Esq., with attached exhibits A, B, C and D;

Claimant's letter to the Chief Clerk, dated June 15, 2011.

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