Turley v. State

279 A.D.2d 819, 719 N.Y.S.2d 380, 2001 N.Y. App. Div. LEXIS 509

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 18, 2001
• Status: Published

Opinion

Spain, J.

Appeal from an order of the Court of Claims (Midey, Jr., J.), entered April 30, 1999, which granted the State’s motion to dismiss the claim.

After obtaining permission from the Court of Claims (Bell, J.) to file a late claim against the State, claimant served the claim on the Attorney General by ordinary mail. The State answered and thereafter moved to dismiss the claim based upon defective service. The Court of Claims granted the motion and this appeal by claimant ensued.

Ordinary mail is not one of the methods of service authorized by Court of Claims Act § 11 (a) and, “[generally, the use of ordinary mail to serve the claim upon the Attorney-General is insufficient to acquire jurisdiction over the State” (Philippe v State of New York, 248 AD2d 827; see, Hodge v State of New York, 213 AD2d 766). Although a defect in the manner of service is waived if the State fails to assert the defect in its answer or in a preanswer motion to dismiss (see, Court of Claims Act §11 [c]), here the State asserted the defect in its answer. Claimant’s contention that the State received actual notice of the claim and, therefore, was not prejudiced by his use of ordinary mail is unavailing, for “notice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court” (Feinstein v Bergner, 48 NY2d 234, 241). Accordingly, the claim was properly dismissed (see, Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687).

Cardona, P. J., Mercure, Carpinello and Rose, JJ., concur. Ordered that the order is affirmed, without costs.