DAVID TUSZYNSKI CLAIMANT APPELLANT v. DAVID TUSZYNSKI CLAIMANT APPELLANT (2017)

Supreme Court, Appellate Division, Fourth Department, New York.

DAVID F. TUSZYNSKI, CLAIMANT–APPELLANT, v. THE STATE OF NEW YORK, DEFENDANT–RESPONDENT. (CLAIM NO. 125827.) DAVID F. TUSZYNSKI, CLAIMANT–APPELLANT

CA 16–02018

Decided: December 22, 2017

PRESENT: WHALEN, P.J., SMITH, CARNI, TROUTMAN, AND WINSLOW, JJ.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FREDERICK A. BRODIE OF COUNSEL), FOR DEFENDANT–RESPONDENT.

MEMORANDUM AND ORDER

PRO SE.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Claimant, a pro se inmate, appeals from an order granting defendant's motion to dismiss the claim. We affirm. Inasmuch as claimant served the claim by regular mail, the Court of Claims was deprived of subject matter jurisdiction and thus properly dismissed the claim (see Zoeckler v. State of New York, 109 AD3d 1133, 1133 [4th Dept 2013]; see generally Court of Claims Act § 11[a] ). Contrary to claimant's contention, there is no evidence in the record of “ ‘misfeasance or malfeasance on the part of facility officials' that would warrant an estoppel” (Butler v. State of New York, 126 AD3d 1247, 1247 [3d Dept 2015]; cf. Wattley v. State of New York, 146 Misc.2d 968, 969–970 [Ct Cl 1990] ).

Mark W. Bennett

Clerk of the Court

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