October 2013 Court of Claims Update

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The Appellate Division, Fourth Department provides a cautionary tale that the failure to strictly comply with the Court of Claims Act can be fatal to a claim.

On September 27, 2013, the Fourth Department issued its Memorandum and Order in the matter of Zoeckler v State of New York, Slip Op 13-00148 [4th Dept. 2013].  In Zoeckler, plaintiff was granted permission from the Court of Claims to late file a claim against the State of New York.  Plaintiff then served the claim on the Attorney General by regular mail instead of by certified mail, return receipt requested, as is required by Section 11 of the Court of Claims Act.  Twenty (20) months after service of its answer the State of New York moved to dismiss the claim on the ground that the court lacked subject matter jurisdiction of the matter on the basis of the improper service.

In a unanimous decision, the Fourth Department affirmed the Court of Claims order which dismissed the claim.  The Court reminded practitioners that “nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary.”  Failure to properly serve the claim deprives the Court of Claims of subject matter jurisdiction.  In addition, the Court held that the sixty (60) day waiver provision of CPLR 3211 was also not available to the claimant as failure to properly serve the claim does not result in a failure of personal jurisdiction but instead a failure of subject matter jurisdiction “which may not be waived.”  Further, CPLR 2001 may not be used to correct the error as it is jurisdictional in nature.  Accordingly, the claim was dismissed in its entirety.

A simple lesson is to be learned.  Failing to strictly comply with the requirements contained in the Court of Claims Act is done so at your own peril.  Simply serving by regular mail, rather than certified mail, is fatal.  All counsel who practice in the Court of Claims would do well to remind themselves and maybe more importantly their staff, of the necessity that service occur by certified mail.

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