| Brown v State of New York |
| 2014 NY Slip Op 00627 [114 AD3d 632] |
| February 5, 2014 |
| Appellate Division, Second Department |
| Edith Brown, Appellant, v State of New York,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Richard Dearing andDavid Lawrence III of counsel), for respondent.
In a claim to recover damages, inter alia, for personal injuries and wrongful death,the claimant appeals from an order of the Court of Claims (Soto, J.), dated May 8, 2013,which denied her motion, among other things, to dismiss the defendant's first affirmativedefense, and granted that branch of the defendant's cross motion which was to dismissthe claim for lack of jurisdiction based on improper service of the claim upon the State ofNew York.
Ordered that the order is affirmed, with costs.
After the Court of Claims granted the claimant's motion for leave to serve a lateclaim against the defendant, the claimant served a claim on the Attorney General byregular mail. The defendant's answer raised, as a first affirmative defense, the court's lackof jurisdiction based on the claimant's failure to serve the claim personally or by certifiedmail, return receipt requested. In opposition to the claimant's motion, inter alia, to dismissthe first affirmative defense, the defendant cross-moved, among other things, to dismissthe claim based on improper service. In opposition to the defendant's cross motion, theclaimant requested that, pursuant to CPLR 2001, the court disregard the error in service.The court granted that branch of the defendant's cross motion which was to dismiss theclaim for lack of jurisdiction based on improper service of the claim, and denied theclaimant's motion.
Court of Claims Act § 11 (a) (i) provides that a copy of the claim shall beserved personally or by certified mail, return receipt requested, upon the attorney general.The requirements of section 11 of the Court of Claims Act are jurisdictional in natureand, therefore, must be strictly construed (see Dreger v New York State ThruwayAuth., 81 NY2d 721, 724 [1992]). Here, the claim was improperly served upon thedefendant by regular mail and, thus, the court lacked jurisdiction over the defendant(see Govan v State of New York, 301 AD2d 757 [2003]; Thompson v Stateof New York, 286 AD2d 831 [2001]; Edens v State of New York, 259AD2d 729 [1999]; Adkison v State of New York, 226 AD2d 409 [1996];Baggett v State of New York, 124 AD2d 969 [1986]).[*2]
Furthermore, the Court of Claims properlydeclined to correct or disregard the defect in service pursuant to CPLR 2001. Eventhough the attorney general received the claim, service of the claim by regular mail wasmore than a mere technical infirmity, since this method of service introduced a greaterpossibility of failed delivery (see Ruffin v Lion Corp., 15 NY3d 578, 583 [2010];Flick v Stewart-Warner Corp., 76 NY2d 50, 56 [1990]). Accordingly, the courtproperly granted that branch of the defendant's cross motion which was to dismiss theclaim for lack of jurisdiction based on improper service of the claim, and properly deniedthe plaintiff's motion, inter alia, to dismiss the first affirmative defense. Dillon, J.P.,Balkin, Leventhal and Chambers, JJ., concur.