GREEN v. STATE (2007)

Claimant has moved for summary judgment in lieu of a complaint pursuant to CPLR 3213.   The Court will deny and dismiss the matter, without prejudice to the pursuit of a claim under Court of Claims Act §§ 10, 11 and 11-a, to the extent timely.

The Court has reviewed the following documents:

1. “Motion for Summary Judgment in Lieu of Complaint,” dated September 5, 2006, filed September 8, 2006;

2. “Affirmation” of Shawn Green, sworn to September 5, 2006, with annexed Memorandum of Law, attachments, and Affidavit of Service of Shawn Green, sworn to September 5, 2006;

3.  Affirmation in Opposition of Thomas G. Ramsay, Esq., dated November 10, 2006, filed November 15, 2006, with attached exhibit;

4. “Reply” of Shawn Green, sworn to November 22, 2006, filed November 27, 2006.

Claimant, an inmate, has filed this motion for summary judgment in lieu of a complaint to recover for the reported loss of personal property in the course of a transfer from Attica Correctional Facility to Southport Correctional Facility in early May of 2006.   He initially filed and supplemented an institutional personal property claim pursuant to 7 NYCRR part 1700, and exhausted that administrative remedy before proceeding in this Court under Court of Claims Act § 10(9).   Mr. Green seeks summary judgment in lieu of a complaint for an unstated sum, or if denied, the conversion of his motion papers to a claim.   Defendant has opposed the motion on the grounds that CPLR 3213 does not authorize the relief sought by Claimant, that the form of service effected in this matter was improper, and that relief under CPLR 3213 is not a remedy authorized against the State of New York. Each of the grounds asserted by Defendant support denial of the motion.

 CPLR 3213 states, in pertinent part, “[w]hen an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint” (emphasis added).   That limitation on the applicability of the statute has been characterized as “stringent” (see Weissman v. Sinorm Deli, 88 N.Y.2d 437, 443, 646 N.Y.S.2d 308, 669 N.E.2d 242 [1996] ).   Here, Claimant has attempted to make use of that form of action to secure recovery for a matter not authorized within the statute.   The inmate claim form and its supplements cannot be deemed an “instrument for the payment of money only,” since no explicit promise to pay a sum certain is set forth within the face of the document, and outside proof is needed to establish any obligation (see Weissman, 88 N.Y.2d at 444-445, 646 N.Y.S.2d 308, 669 N.E.2d 242).   Further, nothing within the papers would support that the institutional claim somehow became reduced to a judgment.   Thus, and assuming that the jurisdiction of the Court of Claims extends to such a remedy, Claimant's motion must be denied in this instance.

 As a second ground for denial Defendant has urged that the manner of service of the motion papers herein undisputedly by ordinary mail was insufficient to acquire personal jurisdiction over the State.   The Court agrees.   The expedited relief provided for under CPLR 3213 is in the form of a “motion-action” (Schulz v. Barrows, 94 N.Y.2d 624, 628, 709 N.Y.S.2d 148, 730 N.E.2d 946 [2000] );  see Siegel, Practice Commentaries (McKinney's Cons. Laws of N.Y., Book 7B, CPLR C3213:1, at 406).  “It is in effect a plenary action brought on with the facility of a mere motion” (Siegel, id.).   For that reason such relief can only be considered where jurisdiction has first been gained over the person of the defendant (Biological Concepts v. Rudel, 159 A.D.2d 32, 558 N.Y.S.2d 312 [1990] ).   Pursuant to Court of Claims Act § 11(a)(i) service upon the Attorney General personally, or by certified mail, return receipt requested, are established as the only two methods by which a claim against the State can be commenced in this Court.   Service by ordinary mail is insufficient to acquire personal jurisdiction over Defendant (Govan v. State of New York, 301 A.D.2d 757, 753 N.Y.S.2d 230 [2003], lv. denied 99 N.Y.2d 510, 760 N.Y.S.2d 101, 790 N.E.2d 275 [2003] ).   The State has raised that defect in service in seeking dismissal herein, and cannot be deemed to have waived that jurisdictional defense (see Court of Claims Act § 11 [c];  Yihye v. Blumenberg, 260 A.D.2d 371, 687 N.Y.S.2d 703 [1999], lv. denied 93 N.Y.2d 813, 695 N.Y.S.2d 541, 717 N.E.2d 700 [1999] ).   Thus, and again assuming that an action under CPLR 3213 could be pursued in this Court, dismissal is required for lack of personal jurisdiction.

 Lastly, the expedited relief set forth within CPLR 3213 must be deemed inapplicable to matters filed in the Court of Claims.   That provision has no direct equivalent within the Court of Claims Act, and cannot be sufficiently harmonized with the court's jurisdictional prerequisites to be recognized under the general practice provisions set forth within Court of Claims Act §§ 8 and 9(9).   Those sections direct that matters in this Court are to be determined in accordance with the same rules of law and practice as apply to actions in Supreme Court, although subject to the jurisdictional limitations within article 2 of that statute (see section 8), as well as any inconsistent provisions within the Court of Claims Act, the Court's rules, or the CPLR (see section 9[9] ).

 As previously noted, a motion for summary judgment in lieu of a complaint is a form of action.   Under CPLR 304 an action in Supreme Court ordinarily is commenced “by filing a summons and complaint or summons with notice,” although CPLR 3213 provides a variation wherein the summons is accompanied by a notice of motion and supporting papers in lieu of a complaint.   It is the filing and service of the summons with notice, or the summons and accompanying pleading or motion, that invokes the court's jurisdiction in Supreme Court (see CPLR 304;  see Parker v. Mack, 61 N.Y.2d 114, 472 N.Y.S.2d 882, 460 N.E.2d 1316 [1984] [service of summons that failed to recite nature of the action and relief sought, as required under CPLR 305(b), and without complaint, rendered commencement a nullity];  Sangiacomo v. County of Albany, 302 A.D.2d 769, 754 N.Y.S.2d 769 [2003] [filing and service of complaint unaccompanied by summons rendered action a nullity] ).   In contrast, the concept of a summons is foreign to the practice in the Court of Claims.   Instead, the jurisdiction of the Court is invoked through the timely filing and service of a claim (Court of Claims Act § 10;  see Dreger v. New York State Thruway Auth., 81 N.Y.2d 721, 593 N.Y.S.2d 758, 609 N.E.2d 111 [1992] ).   A second jurisdictional distinction relates to the pleadings themselves.   Neither CPLR 3213, nor the related summary judgment provisions of CPLR 3212(b), necessitate that any specific allegations be made within the supporting affidavit, as a jurisdictional requirement.   Again, in contrast, in Court of Claims practice the claim must set forth certain allegations, with jurisdictional consequence (see Court of Claims Act § 11 [b];  Lepkowski v. State of New York, 1 N.Y.3d 201, 770 N.Y.S.2d 696, 802 N.E.2d 1094 [2003];  Kolnacki v. State of New York, 8 N.Y.3d 277, 832 N.Y.S.2d 481, 864 N.E.2d 611, [decided March 22, 2007] [failure to recite total sum claimed, as set forth within section 11[b] is a jurisdictional defect] ).   Verification of the claim is similarly set forth as a requirement, albeit waivable (see Court of Claims Act § 11[b], [c][iii];  Lepkowski, 1 N.Y.3d at 209-210, 770 N.Y.S.2d 696, 802 N.E.2d 1094).   Any effort at formulating a remedy under CPLR 3213 through the selective disregard of pleading and verification provisions set forth within the Court of Claims Act would run afoul of the well-recognized caution that “[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed” (Lichtenstein v. State of New York, 93 N.Y.2d 911, 913, 690 N.Y.S.2d 851, 712 N.E.2d 1218 [1999], quoting Dreger v. New York State Thruway Auth., 81 N.Y.2d 721, 724, 593 N.Y.S.2d 758, 609 N.E.2d 111 [1992];  see Lepkowski, 1 N.Y.3d at 206-207, 770 N.Y.S.2d 696, 802 N.E.2d 1094;  Kolnacki, 8 N.Y.3d at 280, 832 N.Y.S.2d 481, 864 N.E.2d 611).   For those reasons Claimant's attempt to make use of CPLR 3213 to obtain expedited relief in this Court must be rejected.

Based upon the above the motion is denied and dismissed.   Claimant's alternative request that the motion and answering papers be deemed the pleadings herein is denied.   Dismissal is without prejudice to the pursuit of a claim under Court of Claims Act §§ 10, 11 and 11-a, to the extent timely.

MICHAEL E. HUDSON, J.